Smt. Shanti Bhatt And Another ... ... vs State Of Uttarakhand And Another
2023 Latest Caselaw 1567 UK

  HIGH COURT OF UTTARAKHAND
         AT NAINITAL

     Writ Petition (M/S) No.1641 of 2023
Smt. Shanti Bhatt and Another                         ...    Petitioners

                                 Vs.

State of Uttarakhand and Another                      ... Respondents


Advocate:    Mr. Shivanand Bhatt, learned counsel for the petitioners.
             Mr. R.C. Arya and Mr. Yogesh Kumar Tiwari learned
             Standing Counsel along with Mr. Devesh Ghildiyal, learned
             Brief Holder for the State.


Hon'ble Sharad Kumar Sharma, J.

The instant writ-petition arises out of the judgment dated 06.07.2018 as it has been passed by the Prescribed Authority / Sub-Divisional Magistrate, Srinagar, Pauri Garhwal in Case No.29 of 2007, State Vs. Kushlanand Bhatt(deceased). Since the deceased is now being represented by the heirs, as well as that the judgment dated 12.05.2023 which was passed by the District Judge, Pauri Garhwal in Misc. Appeal No.58 of 2018, Kushlanand Bhatt and Others Vs. State of Uttarakhand, whereby while exercising the Appellate Powers under Section 9 of the U.P. Public Property (Eviction of Unauthorized Occupant) Act, 1972 (for short "the Act") eviction has been ordered.

2. The petitioner has been held to be an unauthorized occupant of the land and he has been directed to vacate the premises. Consequently, the writ-petition has been preferred.

3. The facts as argued by the learned counsel for the petitioner is that in 2001, it was alleged, that the husband of the petitioner late Mr. Kushlanand Bhatt has purchased 1 naali of land lying in Khasra No.1055 in Village Srikot Ganganali, Patti Katulsyun, Pauri Garhwal.

4. He contends that over the said land which was purchased by him in 2001, there exist a construction and an orchard which is still continues to be occupied by him.

5. Owing to certain complaints which was submitted against him, the Sub-Divisional Magistrate, has directed to conduct an inquiry and a challani report was submitted, as a consequence thereto, holding thereof, that the present petitioner is in an unauthorized occupant of Khasra No.1078 measuring 0.008 hectares, situated in the aforesaid village and, hence, in accordance with the Patwari's report dated 23.10.2007, he was held to be in an unauthorized occupation of land without title and it was found that he was occupying the land ever since for the last 17 years. Consequently, a damages were also determined to be paid by him of Rs.5,000/-.

6. In the proceedings before the Prescribed Authority, the respective parties had led their evidences, including the petitioner, and, thereafter, after appreciating the evidence and the statement recorded by the witnesses, the learned Prescribed Authority in a proceedings under Section 4/5 of the Public Premises Act, 1972 has, ultimately, come to a conclusion, on the basis of statement of admission made by the petitioner, wherein he has admitted the fact that he is in unauthorized occupation of the State land, which has been referred to in the notice issued to him under Section 4/5 of the Public Premises Act, of which he was in receipt.

7. Once, it was an admission on the part of the petitioner, that he is occupying State land without any authority or title being vested with him, he was supposed to be evicted from the premises in question, as it has been directed by the judgment of the Prescribed Authority, which, later on, upon being challenged before the Appellate Authority under Section 9 of the Act has been affirmed by the learned Appellate Court.

8. During the course of argument on this writ-petition when the matter was taken up in the pre-lunch sessions, there were two-fold argument, which was extended by the learned counsel for the petitioner. One that he is not in occupation of the

land which was subject matter of the notice under Section 4/5 of the Public Premises Act i.e. Khasra No.1078 having an area of 0.008 hectares; as situated in Village Srikot Ganganali, Patti Katulsyun, Pauri Garhwal.

9. In the post-lunch session, in order to prove his title over the land in question though contrary to the records, an attempt made by the petitioner in the proceedings before the Court below, there was no such document placed by him on record to show that the title over the land lying in Khasra No.1078 in Village Srikot Ganganali, Patti Katulsyun, Pauri Garhwal, was ever vested with the petitioner. In order to draw attention of his alleged claim of title over the land in question, the learned counsel for the petitioner has placed before this Court a sale deed, which is said to have been executed on 05.01.2001 and, on that basis, he submits that the land for which the proceedings under Section 4/5 of the Public Premises Act was drawn, he happens to be a purchaser of the said property.

10. This argument of the learned counsel for the petitioner is not acceptable for the reason being that, the sale deed on which he has placed reliance for the first time before this Court, in fact, it happens to be in relation to a land lying in Khata No.7, Khet No.1055 having an area of 0.020

hectares. The land thus conveyed to him by virtue of the aforesaid sale deed, in fact, is a distinct land to the one for which, the proceedings under Section 4/5 of the Public Premises Act was taken against him.

11. In fact, since reliance was not placed on this document by the counsel for the applicant before the Court below, it cannot be permitted to be considered for the first time before this Court in order to substantiate his argument at this belated stage, that he was a purchaser / owner of Khasra No.1078, having an area of 0.008 hectares, nor there is any document as such on record to show that his title ever stood recorded in his name in the revenue records, that the land has been recorded in his favour rather to the contrary challani report submitted by the Tehsildar on 07.11.2017, it observes to the contrary, that the land thus lying in Khasra No.1078 having an area of 0.008 hectare is a State land, and the defence taken by the petitioner before this Court, on the basis of the sale deed dated 05.01.2021, in fact, was an aspect which was considered by the Prescribed Authority after holding a measurement and observing thereof that the land referred to in the challani report being Khasra No.1078 is distinct to the land as claimed to have been purchased by the present petitioner lying in Khasra No.1055.

12. In fact, there is nothing on record to show that ever a valid title was vested with the petitioner over the land in question, which was otherwise recorded in the revenue records as to be a land belonging to the State Government as would be apparent from the Exibit-2 which was submitted before the learned trial Court wherein the land was shown to be a land recorded with the State.

13. Besides this, no documentary evidences which has been on record is required to be appreciated by the Court for the purpose of determining the aspect, as to whether the petitioner happens to be an unauthorized occupant of the land in question or not, particularly, when under the law of evidence the admission is the best evidence and no other supporting evidence is required to be considered to come to a conclusion as to whether the petitioner happens to be an unauthorized occupants over the State land or not?

14. Before the learned Prescribed Authority, the petitioner has recorded the following statement, which is extracted herein"

"foi{kh }kjk avius lk{;ksa esa Lo;a Lohdkj fd;k x;k gS fd mDr Hkwfe ljdkjh gSSA ftlls eSa bl fu"d"kZ ij igqapk gwW fd foi{kh dq'kykuUn iq= gfjd`".k HkVV fuoklh JhdksV xaxkukyh rglhy Jhuxj tuin x<oky us xzke JhdksV xaxkukyh ds [kljk ua0 1078 e/;s 0-008 gs0 Hkwfe ij rkj&ckM+ o isM+ yxkdj voS/k v/;klu fd;k x;k gSA"

15. In his defense, which he has taken before the Prescribed Authority, he admits the fact that the

land which is the subject matter of the proceedings under Section 4/5 of the Public Premises Act, is a State land which is in his occupation.

16. The said finding, which has been recorded and, later on, affirmed in an appeal, which would a concurrent finding of facts pertaining to the determination of present petitioner, as to be an unauthorized occupant of the State land. As such, in the exercise of the supervisory jurisdiction by this Court under Article 227 of the Constitution of India, re-appreciation of an evidence or consideration of fresh evidence is not required to be ventured into by this Court, particularly, when the petitioner has apparently failed to submit that at any point of time a valid title was ever vested on him by virtue of documents on record at any stage of the proceedings before the Appellate Court under Section 9 of the Act.

17. It is not even that in the revenue records too, along with the reports do support the case of the petitioner that the land in question is not a State land which has been occupied by the present petitioner without any title being vested on him.

18. The Hon'ble Apex Court has observed that an encroachers over the public land are to be held as to be a theft of the State land and in that eventuality, they cannot claim any right over the land.

19. For the aforesaid reasons, since the petitioner has been concurrently determined as to be an unauthorized occupant of the State land based upon his own admission, no interference is called for in the writ-petition under Article 227 of the Constitution of India, in the exercise of my supervisory jurisdiction.

20. The Writ Petition, accordingly, fails.

(Sharad Kumar Sharma, J.) 08.06.2023 Sukhbant/