Uttarakhand High Court
WPMS/1445/2011 on 2 August, 2023
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
ON THE 2NDDAY OFAUGUST, 2023
BEFORE:
HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI
WRIT PETITION (M/S) NO. 1449 OF 2011
BETWEEN:
Shri Gurubachan Singh and others ....Petitioners
AND:
Additional District Judge, Rishikesh,
District Dehradun & others. ....Respondents
With
WRIT PETITION (M/S) NO. 1445 OF 2011
BETWEEN:
Shri Sanjeev Kalra and others ....Petitioners
AND:
Additional District Judge, Rishikesh,
District Dehradun & others. ... Respondents
With
WRIT PETITION (M/S) NO. 1447 OF 2011
BETWEEN:
Shri Yogesh Verma and others ....Petitioners
AND:
Additional District Judge, Rishikesh,
District Dehradun & others. ....Respondents
2
With
WRIT PETITION (M/S) NO. 1448 OF 2011
BETWEEN:
Shri Shashi Pal .... Petitioner
(By Mr. Bhupesh Kandpal, Advocate)
AND:
Additional District Judge, Rishikesh,
District Dehradun & others. ....Respondents
(By Mr. Pradeep Hairiya, Standing Counsel for the State of Uttarakhand)
JUDGMENT
Since common questions of law and fact are
involved in these writ petitions, therefore they were
heard together and are being decided by a common
judgment. However for the sake of brevity, facts of Writ
Petition (S/S) No.1449 of 2011 alone are being
considered and discussed.
2. Proceedings under U.P. Public Premises
(Eviction of Unauthorized Occupants) Act, 1972 (from
hereinafter referred to as "Act No. 22 of 1972") were
initiated against the petitioners, which resulted in
passing of eviction order against them. Petitioners filed
Appeal under Section 9 of the Act, which were
dismissed by learned Additional District Judge,
Rishikesh, District Dehradun. In these petitions,
petitioners have challenged the judgement dated
11.07.2011 passed by Appellate Authority/Additional
District Judge, Rishikesh, District Dehradun.
3. In the writ petition, it is contended that the
land comprised in Khasra No. 78 Mauja Rishikesh,
District Dehradun was owned by one Lalit Mohan and
petitioners were occupying the said land as tenant,
wherefrom they were running their business. In para 3
of the writ petition, it is mentioned that declaration
under Section 143 of Uttar Pradesh Zamidari Abolition
and Land Reforms Act, 1950 (from hereinafter referred
to as "UPZA&LR Act") was also made by the Competent
Authority in respect of the said land. It is contended
that since the land is governed by UPZA&LR Act,
therefore, petitioners can be evicted only by following
the procedure laid down in UPZA&LR Act.
4. Although reply to the notice issued under
Sections 4(1) of Act No. 22 of 1972, is not enclosed,
however, from the judgment rendered by Prescribed
Authority, it is revealed that petitioners claimed title by
adverse possession, which they could not prove.
5. Stand taken by respondent no. 3 before
Prescribed Authority was that the land in question was
included within municipal limits before 07.04.1949; land
is recorded in the name of Education Department; it is
being used by petitioners for commercial purpose,
therefore, it does not qualify to be land, as defined
under Section 3(14) of UPZA&LR Act. Reliance was
placed upon gazette notification dated 19.03.2022,
whereby Notified Area Rishikesh was established.
6. Learned Prescribed Authority held that there
is nothing on record to show that petitioners were in
possession as agriculturist and their claim of possession
is not supported by any entry in revenue records; it was
further held that the land in question is not used for
agriculture, therefore it does not come within the
meaning of the term 'land', as defined in UPZA&LR Act.
Learned Appellate Authority affirmed the judgment
rendered by Prescribed Authority by holding that the
land in question was recorded in Revenue Record in the
name of Education Department, as the same was gifted
on 20.08.1973 by Lalit Mohan to Education Department
for establishing a Government Degree College and
provisions of UPZA&LR Act are not applicable to the said
land, as it was within Municipal Limits on the date of
enforcement of said Act.
7. Challenging the judgment passed by
Appellate Authority, learned counsel for petitioners
contended that Section 4(2)(b) of Act No. 22 of 1972
ordains that minimum ten days' time is to be given to
the alleged unauthorized occupant for submitting reply,
but petitioners were given only one day's time which
vitiates the entire proceedings. However, neither show
cause notice is enclosed nor date of issuance of notice
is mentioned in the writ petition to substantiate the said
contention. The date of service of such notice upon
petitioners is missing and the writ petition is silent as
regards the last date for submission of reply. In the
absence of these relevant particulars, the contention as
raised by petitioners, cannot be accepted.
8. Learned counsel for petitioners then contends
that since it is an agricultural land, therefore,
petitioners can be evicted therefrom only by invoking
provisions contained in Section 122-B(3) of UPZA&LR
Act and provisions contained in Act No. 22 of 1972
could not have been invoked for evicting the
petitioners.
9. This submission is also without any force. In
para 3 of the writ petition, it is pleaded that declaration
under Section 143 of UPZA&LR Act was made by the
Competent Authority in respect of land in question.
Sub-Section (2) of Section 143 of the Act provides that
upon grant of declaration under Section 143(1) of the
Act, provisions of Chapter VIII of UPZA&LR Act shall
cease to apply to the Bhumidhar with transferable
rights with respect of such land.
10. Section 3(14) of UPZA&LR Act defines the
expression 'Land' as follows:-
"(14) "Land" [except in Sections 109, 143 and 144
and Chapter VII] means land held or occupied for
purposes connected with agriculture, horticulture or
animal husbandry which includes pisciculture and
poultry farming;"
Thus, such land, which is held or occupied for
purposes connected with agriculture, horticulture or
animal husbandry (which includes pisciculture and
poultry farming) alone would be governed by provisions
of UPZA&LR Act.
11. It is not in dispute that the land in question is
used for commercial purposes and petitioners admit
that declaration under Section 143 of the said Act is
also issued by the competent authority, therefore, the
land cannot be said to be governed by provisions of
UPZA&LR Act. For ready reference Section 143 of
UPZA&LR Act is reproduced below:-
"143. Use of holding for industrial or
residential purposes. - (1) Where a [bhumidhar
with transferable rights] uses his holding or part
thereof for a purpose not connected with agriculture,
horticulture or animal husbandry which includes
pisciculture and poultry farming, the Assistant
Collector incharge of the Sub-Division may, suo motu
or on an application, after making such enquiry as
may be prescribed, make a declaration to that effect.
3(14) "Land" [except in Sections 109, 143 and
144 and Chapter VII] means land held or occupied
for purposes connected with agriculture, horticulture
or animal husbandry which includes pisciculture and
poultry farming."
12. Hon'ble Supreme Court in the case of
Chandrika Singh v. Raja Vishwanath Pratap Singh,
(1992) 3 SCC 90 has held that "in respect of Abadi land
it is implied that the land is not being used for purposes
connected with agriculture, horticulture or animal
husbandry and in view of the definition of 'land'
contained in Section 2(14) of UPZA&LR Act, such land is
not land for the purpose of the Act". Paragraph nos. 11
& 12 of the said judgment are extracted below:-
"11. In respect of Abadi land it is implied that the
land is not being used for purposes connected with
agriculture, horticulture or animal husbandry and in view
of the definition of 'land' contained in Section 2(14) of the
Act such land is not land for the purpose of the Act. In
order to exclude the applicability of the Act on the ground
that the land is Abadi land it is necessary to determine
whether the said land is or is not being used for purposes
connected with agriculture, horticulture or animal
husbandry. Such a determination is envisaged by Sections
143 and 144 and where such a determination has not
been made in accordance with those provisions and this
question arises before a court in a suit, it is required to be
determined in accordance with the provisions of Section
331-A. The scheme of the provisions contained in Section
143, Section 144 and Section 331-A is that the question
whether a particular land is or is not used for the purposes
connected with agriculture, horticulture or animal
husbandry has to be determined either under Section 143
or Section 144 and where no such determination has been
made, it should be determined by following the procedure
laid down in Section 331-A. It is not open to a court
dealing with a suit in which the said question arises to
bypass the provisions of Section 331-A and to proceed to
determine the said question itself.
12. In order that Section 331-A may be invoked the
following conditions must be satisfied:
(i) The suit must relate to land held by a
bhumidar;
(ii) the question whether the land in question
is or is not used for purposes connected with
agriculture, horticulture or animal husbandry should
arise or be raised in the said suit; and
(iii) a declaration has not been made in
respect of such land under Section 143 or Section
144."
13. Learned State Counsel points out that shops
have been constructed over the land, which are used by
petitioners for running their business. Learned
Prescribed Authority and learned Appellate Authority
have also considered this aspect and have come to the
conclusion that the land is not governed by provisions
of UPZA&LR Act. The finding returned by learned
authorities does not suffer from any infirmity.
14. There is yet another aspect of the matter. It
was the case of respondents throughout that the land in
question was included in Notified Area/Municipality
before 7th day of July, 1949, which position has not
been disputed by petitioners. Therefore, by virtue of
Sections 1 (2) of UPZA&LR Act, provisions of the said
Act would not be applicable to the land in question.
15. Learned counsel for petitioners then contends
that in view of Gazette notification dated 31.08.1974
issued by State Government, only Additional District
Magistrates can exercise power, as Prescribed Authority
under UP Act No. 22 of 1972. The said Gazette
notification is enclosed as Annexure 2 to the petition,
which reads as under:-
"In exercise of the powers under Section 3 of the Uttar
Pradesh Public Premises (Eviction of Unauthorised Occupants)
Act, 1972 Uttar Pradesh Act No. 22 of 1972, read with Section
21 of the U.P. General Clauses Act, 1904 (U.P. Act No. 1 of
1904) and in partial modification of Government notification No.
41 Rev.-1-1(1)/71 dated June 14, 1972 the Governor is pleased
to appoint the following persons as prescribed authority for the
purpose of the said Act and further to define the local limits as
under within which and the categories of public premises in
respect of which the said prescribed authority shall exercise the
powers conferred and perform duties imposed on prescribed
authorities by or under the said Act.
In respect of all public premises.
All Additional District Magistrates, Uttar Pradesh within
their own jurisdiction."
16. Learned State Counsel however has relied
upon the first notification dated 11.03.1972 issued
under Section 3 of Act No. 22 of 1972, whereby all Sub-
Divisional Officers/Additional Sub-Divisional Officers, in
their Sub-Divisions, all City Magistrates/Additional City
Magistrates in their City Sub-Divisions and all the
Additional Collectors in respect of the District to which
they are posted, were authorised to perform the
functions of Prescribed Authority. Learned State
Counsel thus submits that notification relied by
petitioners does not supersede this notification issued
on 11.03.1972 and it only modifies partially the
notification dated 14.06.1972. Thus, according to him,
power conferred upon Sub-Divisional Magistrate/City
Magistrate by first notification dated 11.03.1972
remains unaffected by the notification dated 31.08.1974
relied by petitioners.
17. In support of this contention, he has relied
upon another notification dated 24.09.1998 issued
under Section 3 of Act No. 22 of 1972, whereby
notification dated 24.01.1978 was superseded. The said
notification dated 24.09.1998 is reproduced below:
"In exercise of the powers under Section 3 of the Uttar
Pradesh Public Premises (Eviction of Unauthorised Occupants)
Act, 1972 (U.P. Act No. 22 of 1972) read with Section 21 of the
Uttar Pradesh General Clauses Act, 1904 (U.P. Act No. 1 of
1904) and in supersession of Government Notification No. U.O.
268/Revenue-1/1-6(5)-77 dated January 24, 1978, the Governor
is pleased to appoint with effect from the date of publication of
this notification in the Gazette, the following persons, being
Gazetted Officers of the State Government as Prescribed
Authority, who shall exercise the powers conferred and perform
the duties imposed on the Prescribed Authority by or under the
said Act No. XXII of 1972 in respect of all public premises situate
within their respective jurisdiction mentioned against each:-
Labour Commissioner Uttar Whole of Uttar Pradesh
Pradesh/ Additional Labour
Commissioner/ Joint Labour
Commissioner, Uttar Pradesh/
Deputy Labour Commissioner/
Assistant Labour Commissioner
(Housing).
Regional Deputy Labour Within their respective
Commissioner. region"
18. This Court finds substance in the contention
raised by learned State Counsel. The notification dated
31.08.1974 relied by petitioners does not have the
effect of rescinding the first notification dated
11.03.1972 and it merely authorises Additional district
Magistrates to exercise power of Prescribed Authority,
in addition to authorities named in the first notification.
The notification relied by petitioners does not support
their contention that the powers conferred upon Sub
Divisional Officer by notification dated 11.03.1972 were
withdrawn. The notification relied by petitioners was
not in supersession of the first notification, therefore,
the contention raised by learned counsel for petitioners
that Sub Divisional officer had no authority to exercise
power of Prescribed Authority cannot be accepted.
19. In the present case, it is the Sub-Divisional
Officer, Rishikesh who passed the eviction order under
Section 5(1) of Act No. 22 of 1972 and in the absence
of any material to show that authority of Sub-Divisional
Officer was withdrawn, challenge to the order of
eviction on the ground that SDO lacked jurisdiction
cannot be sustained.
20. Even otherwise also, petitioners availed
remedy of appeal under Section 9 of Act No. 22 of 1972
which is available only against order of Prescribed
Authority, thus they acquiesced to the status of SDO as
Prescribed Authority. Since the eviction order was
passed by Sub-Divisional Officer in his capacity as
Prescribed Authority, therefore, petitioners' cannot now
contend that it was not passed by Prescribed Authority.
21. Learned counsel for petitioners has placed
reliance upon a judgment rendered by learned Single
Judge of Hon'ble Allahabad High Court in the case of
Deepika Singh v. Zila Panchayat, Bulandshahr and
another in Writ - (C) No. 14422 of 2016, wherein it was
held that in view of notification dated 24.09.1998 only
the Authorities, named in the said notification, are
empowered to act as Prescribed Authority and no one
else.
22. In the humble opinion of this Court, the said
judgment proceeds on the premise that notification
dated 31.08.1974 has superseded the earlier
notifications, which, however is not the case, as the
said notification partially modified the notification dated
14.06.1972 and it does not have the effect of rescinding
first notification dated 11.03.1972.
23. Learned Prescribed Authority as well as
learned Additional District Judge have given valid
reasons for holding that the land in question is public
premises within the meaning of term as defined under
Section 2(e) of Act No.22 of 1972, therefore, this Court
is not inclined to take a different view in the matter
while exercising power under Article 227 of the
Constitution.
24. Accordingly, writ petitions fail and are hereby
dismissed. There will be no orders as to costs.
(MANOJ KUMAR TIWARI, J.)
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