Shankar Datt vs State Government Through ...
2021 Latest Caselaw 4802 UK

 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

                Writ Petition (M/S) 206 of 2011


Shankar Datt                             .................Petitioner

                             -versus-

State Government through District Collector Almora and
another
                                        ............Respondents


          Date of hearing and Judgement : 30.11.2021


Advocates appeared in the case:-

For Appellant          : Mr. Amish Tiwari, learned counsel for the
petitioner


For Respondents : Mr. Yogesh Chandra Tiwari and Mr. Suyash
Pant, Standing Counsels for the State.



Sri S.K.Mishra, J.

1. Heard Mr. Amish Tiwari, learned counsel for the petitioner and Mr. Suyash Pant, learned Standing Counsel for the State.

2. In this writ application, the petitioner prays for issuance of a writ of certiorari quashing the judgment and order dated 07.06.2007, passed by the Prescribed Authority, Ranikhet, and the Judgment and order dated 15.12.2010, passed by the District Judge, Almora, whereby the Prescribed Authority passed an order for eviction of the petitioner from the land in question and his appeal too was dismissed by the learned District Judge, Almora.

3. The piece of land, which is the bone of contention between the parties pertains to hal bandobasti khet gky cUnkscLrh [ksr la[;k 1833, [krkSuh [kkrk la[;k 17/178

classified as class 9(3)M, Uttar Pradesh Sarkar Van

Panchayat. It measures an area of 11 mutthi. The Prescribed Authority found the occupation of the land in question by the petitioner to be un-authorised and objectionable and, therefore, the order for eviction. He, therefore, preferred an Appeal to the Court of learned District Judge, who also, as per the detailed Judgement passed by him dismissed the appeal. Accordingly, the orders of the Prescribed Authority was confirmed.

4. The learned counsel for the petitioner basically makes two submissions in assailing the order passed. Firstly, he submits that the Uttar Pradesh Public Premises (Eviction of Unauthorised Occupants) Act, 1972 (hereinafter referred to as 'the Public Premises Act') is not applicable in the present case as the provisions of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 is applicable. Hence, any action taken by the authorities under the Public Premises Act applicable is illegal. Secondly, he submits that there has been no measurement of the land in question by the revenue authorities. Hence, the writ petition should be allowed and the orders passed by the Prescribed Authority confirmed by the appellate Court should be dismissed.

5. In support of his contention, Mr. Amish Tiwari, learned counsel for the petitioner relied upon the

reported case of the State of U.P. (now Uttarakhand) vs. Ravinder Singh, in Civil Appeal No. 2831 of 2009, decided on 27th April, 2009, wherein the Hon'ble Supreme Court has held that when a land is covered under the U.P.Z.A. & L.R. Act, then the eviction principles of the provisions of the Public Premises Act is not applicable.

6. In order to find whether the said judgement is applicable to it, we have carefully examined the same and in paragraph 4, the Hon'ble Supreme Court has held that the question that boils down as to whether the land, which was covered under the definition of Section 3(14) of the U.P.Zamindari Abolition and Land Reforms Act, 1950, can be said to be public premises and, therefore, covered under the Public Premises Act. A cross reference with the definition of land acquiring in sub-section (4) of Section 3 of the U.P.Z.A. & L.R. Act transpires that the land, except in Section 109, 143, 144, and Chapter-7 means lands, held or occupied for the purpose connected with Agriculture, Horticulture or animal husbandry, which includes pisciculture, farming etc.

7. Section 109 relates to building and lands adjacent to mines, hence not applicable to this case. Section 143 also prescribes for the use of holding as residential or industrial purposes, hence it is also not applicable to the present case. Section 144 of the Act prescribes the use of land for agricultural purposes. Thus, it is clear that land as covered under the U.P.Z.A. & L.R. Act is mainly used for the purpose of agriculture and horticulture etc. In this case, the land belongs to the

Van Panchayat to be used by the community for different purposes. It is recognised as protected forest so the Court is of the opinion that the jurisdiction of the prescribed authority under the Public Premises Act is not excluded in this case.

8. In addition to such provision of law, this Court is of the opinion that for the first time, the petitioner is raising this plea of the Uttar Pradesh Public Premises Act is not applicable to the present case. In fact, the order passed by the Prescribed Authority and the District Judge do not reflect any such plea raised before them for adjudication. So, for the first time, in a case of issuance of a writ of certiorari or for invoking the jurisdiction of General Superintendence under Article 227 of the Constitution of India a factual aspect cannot be taken into consideration for a mixed question of fact and law, should not be agitated for the first time in such a proceeding.

9. Secondly, on the second question raised by the leaned counsel for the petitioner, this Court is of the opinion that since the petitioner has not taken a specific instance that he has encroached a part of the land which is adjacent to his own land rather it is the case of the State Government that he has encroached a piece of Government land in its entirety, the question of measuring the same again to find out the exact encroachment is of no consequence and it will not cause any prejudice to the petitioner. Had it been the case of the petitioner that he had a piece of land and he has encroached part of the adjoining land the, while evicting from the

government premises, the revenue authorities has to take care of that they could not evict him from the land which belongs to him. Such is not the case here. So, this Court is of the opinion that the second argument made by the learned counsel for the petitioner is also of no relevance or importance in this case as there is no prejudice caused to the petitioner on this score. Hence, the petition is devoid of merit and is dismissed accordingly.

10. There shall be no order as to the costs.

11. Urgent certified copy of this order be granted on proper application.

(S.K.Mishra) Judge

KKS