Partly allowed

Udai Singh v. D.J. Tehri Garhwal and Others

Uttarakhand HC28 Jul 2017WPMS/1539/2006

Case brief

AI extract

What is this about?

This writ petition challenged an eviction notice and damage imposition under U.P. Act No. 22 of 1972. The Court affirmed the eviction notice but remitted the calculation of damages for a fresh notice, requiring the authority to follow the correct procedure under Section 7.

What did the court decide?

The eviction notice and orders impugned are affirmed; however, the imposition of damages is remitted to the Prescribed Authority to issue a fresh notice under sub-section (3) of Section 7 for calculat

Udai Singh Vs D.J. Tehri Garhwal and Others — Landlord and Tenant | Uttarakhand HC (2017)

¶1

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

¶2

Writ Petition No. 1539 of 2006 (M/S)

¶3

Udai Singh …...Petitioner Versus District Judge and others …… Respondents.

¶4

Present:

¶5

Mr. Rajendra Dobhal, Senior Advocate assisted by Mr. Lokendra Dobhal, Advocate for the petitioner.

¶6

Mr. Pankaj Purohit, Deputy Advocate General for the State of Uttarakhand / respondents.

¶7

Dated: 28^th July, 2017

¶8

JUDGMENT

¶9

Hon’ble Sharad Kumar Sharma, J.

¶10

The Legislature in its wisdom has promulgated U.P. Act No. 22 of 1972 with a social object to be achieved, i.e. to curb out the trend of occupying the public premises occupied unauthorisedly without any sanction of law and authority. The basic purpose why this Act was enforced was that the land which is vested in the State lying vacant in various parts of the territories of the State, it is practically impossible for the State and its machinery to keep a consistent check and control over the utilization of the property and its management and particularly efforts of encroachment. Thus, this Act was enforced as a measure to curtail the unauthorized activities of occupying of public land which is reserved or allocated by the State for various purposes.

¶11

In this chain of events, the respondents have issued notices under Section 4 (1) of the Act to the petitioner, wherein, by issuing form ka as provided Rule 3 of the Rules, he has been asked upon to vacate the premises which he was unauthorisedly occupying within the time given therein.

¶12

¶13

The said notice, the description of the property is given as land lying in Khata No. 166, Khat No. 3042M, having an area 0 – 005 hectares. By this notice, the Prescribed Authority has also imposed a damage to be recovered from the petitioner for the year 2004-05 and, henceforth.

¶14

At this juncture, I feel it would be reasonable to deal with one of the limb of argument of the learned counsel for the petitioner that the proceedings are initiated, because the notice issued is not in consonance to Rule 4 read with FormA. His argument is from the view point that the notice as issued under Section 4, if it does not provide descriptions of the property, the proceedings gets vitiated from its inception.

¶15

On scrutiny of Section 4 (1), it simply gives the provision for issuance of notice and it does not make mandatory that the description of the property is to be given with strict precision is required to be given. Even if the Form A is taken into consideration in the light of the provision contained under Section 4 (1), it simply provides a description of property. In the instant case, the notice which has been issued to the petitioner on 6^th May, 2005, does disclose the fact that he is in possession of land laying Khata No. 166, Khat No. 3042, out of which, an area of 0-005 hectares is in unauthorized possession of petitioner.

¶16

Under the Indian scenario the said description of the property particularly the property which though having been recorded in khatas and which are non ZA land continues to be recognized by the description as given in the said notice.

¶17

He contends to fortify his argument from the fact that even when the entries are made either in non ZA or ZA land in khatuni, nowhere the revenue law contemplates giving of

¶18

¶19

the chauhti to it for the identification. Thus, this ground agitated by the petitioner is untenable and false as notice does not disclose the description of property as provided by law.

¶20

There is another answer to this, argument of the learned counsel for the petitioner, which would be simultaneously touching the other grounds he claims that he is entitled for the benefit of the Government Order dated 19^th October, 1995, which contemplates the regularization of unauthorized occupants.

¶21

The petitioner cannot be permitted to take contrary plea. If he invokes the jurisdiction of this Court taking the benefit of Government Order dated 19^th October, 1995, claiming for regularization of his unauthorized possession, then it would tantamount that he admits the description of the property given in the notice and also fact that he is in possession of public land. If this be so, yet again his earlier argument fails.

¶22

However, this observation which has been made by this Court in relation to the notice dated 19^th October, 1995, will not preclude him from availing his appropriate remedy of regularization as permissible under the said Government Order because that is not an issue before this Court.

¶23

The third argument which has been raised by the petitioner that he happens to be in possession since 1993, with all due reverence to the pleadings raised by the petitioner at various stages, though, it may have been pleaded that he is in possession since 1993, but the factum of possession over the property, particularly, in cases under litigation, it has to be mandatorily settled by him as to in which part he is in possession and up to which extent and

¶24

¶25

for which period, nothing has been placed by petitioner to show the continuous possession over the land.

¶26

Invariably, in accordance with the findings recorded by both the Courts, he has not been able to establish that he is in possession since 1993 and this Court while exercising its jurisdiction under Article 227 of the Constitution of India, while considering the aspect of possession, cannot sit as a Court of appeal and that too in the absence of evidence to establish and settle the possession and its period.

¶27

Lastly, it has been argued by the learned counsel for the petitioner that the manner in which, the damages have been imposed is contrary to the law for the reason, the criteria for calculation of damages is provided under Section 7 read with Form-G of the Act.

¶28

He further contends that under sub-section (3) of Section 7, if a amount is to be calculated for unauthorized occupation, then too a notice under sub-section (3) of Section 7 is required to be given to the petitioner so that he may have his say while the authorities imposed the damages which will always have a civil consequence on the petitioner.

¶29

On scrutiny of both the orders as well as the notice, it seems that once the notice under Section 4 itself refers the quantum of damage, then that means the authorities have already come to a conclusion that this would be that rate of damages to be levied and they themselves by the act have overridden the provision of Section 7, which is not intention of the Act.

¶30

However, without disturbing the findings pertaining to the unauthorized possession, which has been settled by both the Courts and by this judgment that on account of failure to establish the extent of possession, this Court feels

¶31

¶32

that the writ petition deserves to be allowed partly only to the extent so far it relates to the calculation of damages as apparently this Court is satisfied with the argument of the counsel for the petitioner that the process of calculation was not resorted to in an appropriate manner.

¶33

Thus, notice under Section 4 and orders impugned are affirmed so far it relates to the eviction from the public premises, but as far as it relates to the imposition of damages, the matter is remitted back to the Prescribed Authority to issue a fresh notice under sub-section (3) of Section 7 to the petitioner for calculation of damages only and, thereafter, to come to the logical conclusion as to what would be the damages which the petitioner should be leveled under the given circumstances.

¶34

In view of what has been observed, the writ petition partly succeeds.

¶35

(Sharad Kumar Sharma, J.)

¶36

28.07.2017 Shiv

Udai Singh v. D.J. Tehri Garhwal and Others

Case brief

What is this about?

What did the court decide?

Udai Singh v. D.J. Tehri Garhwal and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Natha Singh Vs the D.J. Rudraprayag and Ors.

Gurumukh Singh Vs State and Ors.

S.K. Srivastava Vs State and Ors.

Dr Dinesh Chandra Joshi Vs Distt Judge Haridwar and Ors.

Shakil and Ors. Vs D.D.C and Ors.

Smt Satyawati Badoni Vs State and Ors.