Research › Search › Judgment

Uttarakhand High Court · body

2023 DIGILAW 456 (UTT)

Gopal Krishan v. State of Uttarakhand

2023-08-09

SHARAD KUMAR SHARMA

body2023
JUDGMENT : Sharad Kumar Sharma, J. To begin with, its apt to deal with the basic provisions of law, under which, the property, which was leased out to one Mr. Bhupender Kumar, was said to have been let out by the petitioner under the terms of the rent deed, which was subsequently brought on record on the direction of this Court. 2. The Government Grants Act 1895, provides with, that the leases, which are granted and covered by the provisions of the Government Grants Act, would be exclusively covered by Section 3, which is to be read with the U.P. Amendment provided therein, which specifically in its terms denotes, that the rights and claims between the lessee or the lessor or anyone claiming through lessee, would be governed by the tenor of the lease itself, as provided by the U.P. Amendment, which is extracted hereunder :- “(3) Certain leases made by or on behalf of the Government to take effect according to their tenor. - All provisions, restrictions, conditions and limitations contained in any such creation, conferment or grant referred to in Section 2, shall be valid and take effect according to their tenor, any decree or direction of a Court of law or any rule of law, statute or enactment of the Legislature, to the contrary notwithstanding : Provided that nothing in this section shall prevent, or deemed ever to have prevented the effect of any enactment relating to the acquisition of property, land reforms or the imposition of ceiling on agricultural lands.” 3. The U.P. Amendment, which has been brought about under the Government Grants Act, it clearly specifies, that the grants made under the Act, in favour of a lessee, any right created, conferred or granted, whether under the terms of the lease or in violation to it, would be governed by the provisions of the lease itself. 4. In the instant case, a lease under the Government Grants Act, was executed in favour of one Mr. Bhupender Kumar of Village Jaunk, Patti Udaipur Talla, Tehsil Kotdwar, District Pauri Gahrwal. 5. The said lease, as it was executed on 21st November, 1994, was for building and other purposes, which could be utilized for commercial and industrial purposes too, and its tenure was to continue for a period of 30 years. Bhupender Kumar of Village Jaunk, Patti Udaipur Talla, Tehsil Kotdwar, District Pauri Gahrwal. 5. The said lease, as it was executed on 21st November, 1994, was for building and other purposes, which could be utilized for commercial and industrial purposes too, and its tenure was to continue for a period of 30 years. Being a lease under the Government Grants Act, it related to the plot, which was mentioned in Clause-1 of the lease, the details of which was given in para 2. 6. But that may not be relevant at this stage, as it would be dealt with, when this Court deals with the arguments of the learned counsel for the petitioner. 7. As observed, that the leases under the Government Grants Act, are governed by Section 3, Clause (vi) of the lease becomes relevant to be considered. Clause (vi) is extracted hereunder :- “(vi) The lessee will give up assignment of the said prints as by demised or any part thereof within one calendar month thereafter deliver a notice of such assignment to the commissioner setting forth in the names and description of the parties to every such assignment and the particulars and effect thereof.” 8. As per Clause (vi), the lessee to whom the land has been assigned under the provisions of Government Grants Act, if any assignment is made to any third person, it could only be with a prior permission of the Commissioner, giving the name and description of the parties, to whom the assignment is to be made. 9. The petitioner contends, that a rent agreement which was executed in his favour by one Mr. Bhupender Kumar, was allegedly in relation to the Grant No.27 of 1993-94 of plot No.1002, having an area of 0.080 hectares. If this description of property is taken into consideration, the argument of the learned counsel for the petitioner, that the tenement shop was constructed on the part of the lease property, is absolutely contrary to the two documents as placed by him on record, because the property, which has been measured and described under the lease, is having an area of 0.008 hectares and that which was being let to him by one Mr. Bhupender Kumar. Hence, it was not a part of the property, which was leased. Bhupender Kumar. Hence, it was not a part of the property, which was leased. In that eventuality, the creation of tenancy rights, in favour of the petitioner by virtue of an unregistered rent deed executed on a Rs.100/- stamp paper, cannot said to be a valid document to be read in evidence, for the purposes of creation of any tenancy right in favour of the petitioner in relation to the leased property, which was covered by the lease deed executed by the Governor in favour of Mr. Bhupender Singh on 21.11.1994. 10. Besides this, even if at all, it could be treated as to be a valid rent deed as executed by Mr. Bhupender Kumar, in relation to the property described therein, which according to the lessor, was in relation to the property which was covered by the government lease, there has had to be a compliance of Clause (vi) of the lease which was granted under the Government Grants Act, which nowhere deciphers the same. Meaning thereby, in a nutshell, the very genesis of creation of tenancy right in favour of the petitioner, in relation to the leasehold property, which is a complete leased land, for which, the lease deed was executed, would be void ab initio, since being in violation of the terms of the Clause (vi) of the lease under the Government Grants Act, which would be then governed by the provisions as contained under Section 3 of the Government Grants Act. 11. The learned counsel for the petitioner argues, that the entire proceedings as it was held against him, under the Public Premises Act, would be bad in the eyes of law, for the reason being that, when the notice was issued on the basis of the Tehsildar report dated 26th June, 2007, hence, it is bad because, it was not appropriately describing the property, over which, the proceedings under Section 4/5 of the Public Premises Act, was being proceeded with against him. 12. This contention is yet again not acceptable by this Court, for the reason being, that the petitioner had only placed a part of the document, i.e., the notice issued to him, which describes the property. 13. The property, which has been described in the notice which was issued under Section 4, contains its chauhadi, and apart from it, there were various other supporting documents, viz. 13. The property, which has been described in the notice which was issued under Section 4, contains its chauhadi, and apart from it, there were various other supporting documents, viz. challani report, the map, the nakal khatoni, khasra and fard tasdiqi. Meaning thereby, these documents itself show, that the issuance of notice under Section 4 was resorted to after a careful resorting to the due process of law and after aptly identification of the property as would be apparent from the map and the fard tasdiqi referred to in the challani report, which is the basis of the notice issued under Section 4 (1) to the present petitioner. 14. The notice thus issued was replied by the present petitioner by filing a reply to the said effect on 7th December, 2007, and in the reply thus submitted, he has in para 2 contended, that the tenancy right was created over the grant land, as covered under the grant No.27 of 1993, in relation to plot No.1012, having an area of 0.008 hectares, once again, it is rather a reiteration of the fact, that it was rather the entire lease land, which was let out to the present petitioner and it was not a part, which was attempted to be argued by the learned counsel for the petitioner, that it would necessitate its demarcation and further because demarcation would not be necessary as prior to the issuance of notice under Section 4, the State has undertaken that exercise by preparing a map, measuring the land and preparing the fard tasdiqi, identifying the land in relation to which, the notice under Section 4 was issued to the present petitioner. 15. Its’ based on this, the counsel for the petitioner submits, that the entire proceedings drawn by respondent by issuance of notice under Section 4, would be bad in the light of the judgment of the Division Bench as reported in 1984 (2) ARC 240, Gyan Singh Vs. District Supply Officer, Aligarh and another, where the Division Bench has observed, that for the purposes of issuance of a notice under Form-A under Section 4, contemplating to evict a person under the provisions of the said Act, should disclose the basic feature, particularly the identification of the land, from which the eviction is being made. 16. District Supply Officer, Aligarh and another, where the Division Bench has observed, that for the purposes of issuance of a notice under Form-A under Section 4, contemplating to evict a person under the provisions of the said Act, should disclose the basic feature, particularly the identification of the land, from which the eviction is being made. 16. As observed herein, that prior to the notice, once the entire exercise has been undertaken and based on the revenue document after identification of the land and particularly, when the petitioner was claiming his right from the rent deed itself, as executed by Mr. Mr. Bhupender Kumar, it was after undertaking the exercise of identification of the land, which was in correspondence with the boundary of the land, as described in the Patawari’s report and to the property as given in the petitioner on rent by the rent deed of 05.07.1996. 17. Thus, it cannot contended, that prior to resorting to the proceedings of an issuance of process under Section 4, the State has failed to exercise its power of identifying the land prior to the issuance of the notice, in fact, that was resorted to and it was only after recording the satisfaction by the report of 30th June, 2007, that the notice under Section 4 was issued as against the present petitioner on 13th July, 2007. 18. Consequent to which, the Prescribed Authority, after appreciating the evidence adduced by the parties have proceeded to pass an order on 30th November, 2009, thereby, directing to vacate the premises as it was occupied by him, under the strength of the rent deed as it was executed by the principal lessee, which was apparently in violation of Clause (vi) of the lease executed under the Government Grants Act. What is more remarkable is, that even the Prescribed Authority while directing an eviction of the petitioner, from the property in question, has demarcated the same by virtue of Ex.Ka.3 by distinguishing the property by use of red ink, from which the petitioner was supposed to be evicted. The said judgment of the Prescribed Authority of 30th November, 2009, has been affirmed by the Appellate Court by dismissing the Appeal preferred under Section 9 of the Public Premises Act. The said judgment of the Prescribed Authority of 30th November, 2009, has been affirmed by the Appellate Court by dismissing the Appeal preferred under Section 9 of the Public Premises Act. Since the very genesis of the right of the petitioner is in violation of the provisions of the terms of the lease, particularly the conditions of Clause -(vi), he may not have any right, as such, over the property to continue his possession under the strength of the rent deed, which was void in itself from its inception only. 19. In view of the aforesaid, I do not find any merit in the Writ Petition, the Writ Petition is accordingly dismissed.