Civil Appeal No 484 of 1969
From the Judgment and order dated 28 7 1967 of the Allahabad High Court in Special Appeal No 35267
M section Gupta for the Appellant
G N Dikshit and O P Rana
for the Respondents
The Judgment of the Court was delivered by SARKARIA J
This is an appeal by certificate against a judgment dated July 28 1967 passed by the High Court of Allahabad in Special Appeal 352 of 1967
It arises our of these fact
Jai Dutt appellant was in possession of public land bearing Survey Nos 230 131A and 131B with an aggregate area of 80 Bighas and 19 Biswas in the area of village Guljarpur PurraamSingh Tehsil Kala chungi Distt
Nainital
The Public Authority Nainital served a show cause notice dated August 26 1963 under Section 31 of the UP Land Eviction and Recovery of Rent and Damages Act 1959 here inafter called the Eviction Act on the appellant for his eviction from this land on the ground that he was in its unauthorised occupation
The appellant contested the notice on the ground that he was in its possession for more than 12 years and had acquired the rights of a hereditary tenant in the land under Section 1802 of the UP Tenancy Act 1939 for short called the Tenancy Act
On these premises the appellant contended that the land was not public land  and as such the Eviction Act has no application and the notice was illegal
By its order dated October 31 1963 the Public Authority dismissed the objections holding that the appellant has not filed any documentary evidence to show that the land in dispute was allotted to him by a competent authority while the documents filed on behalf of the State show that it is a public land and the OP appellant herein is a trespasser thereon and he is therefore liable to be evicted therefrom 177 under Section 41 of the Eviction Act
The Public Authority further assessed Rs 12 as damages payable by the appellant
Against this order of the Public Authority Jai Dutt carried an appeal under Section S of the Eviction Act to the District Judge
The appeal was heard by the Additional District Judge Kummaon Nainital before whom the appellant reiterated the contention that he had been in possession of the land in question for the preceding 12 years and as such had acquired the rights of a hereditary tenant thereon
There the appellant seems to have further contended that he had been paying rent for his occupation of the land He appears to have shown some receipts also to the Additional District Judge
The Additional District Judge negatived all the contentions and dismissed the appeal
The appellant then filed a writ petition under Article 226 of the Constitution before the High Court to impugn the orders of the Public Authority and of the Add
District Judge inter alia on the ground that since he had been paying rent for the land which has been in his cultivating possession for a number of years preceding the eviction proceedings he could not be said to be all unauthorised occupant  but a hereditary tenant under Section 1802 of the Tenancy Act The learned Single Judge of the High Court who heard the writ petition rejected this contention with the observation that the Khatauni of 1368 Fasli entered the petitioner s possession over the disputed plots as ranging from 1 to 6 years
The oral evidence led by the petitioner does not outweigh the force of the entries in the Khatauni
The petitioner therefore did not acquire any title under Section 180 of the UP Tenancy Act before 1953
 The learned Single Judge further observed that the decision of the Division Bench of that High Court in Shri Chandra vs State of UP  Ors
WP No 3277 of 1966 decided on 13 2 67 was applicable to the case and the land in dispute will be public land and the possession of the appellant unauthorised
In the result the writ petition was dismissed with costs
The appellant s special Appeal was dismissed by a Division Bench of the High Court on July 28 1967
In the meantime the Eviction Act was successfully challenged before the High Court in Writ Petitions 3755 and 3756 of 1962 which were decided on May 24 1968
Keeping in view the value of the subject matter which exceeded Rs 20000 and the question of the Constitutional validity of the Eviction Act the High Court granted a certificate under Article 133 la and c of the Constitution that the case was fit for appeal to this Court
Hence this appeal
178 Mr M section Gupta appearing for the appeal has now given up the challenge to the Constitutional validity of the Eviction Act on the ground of its being violative of Article 14 of the Constitution because this ground of attack no longer survives in view of this Court s judgement in Maganlal Chhagganlal vs Municipal Corporation of Greater Bombay  ors1 He however sought to make out these points i The appellant had been in cultivatory possession of the land for a number of years and no action for his eviction was taken for a long time and since no steps were taken by the Government to evict him evict two years of his entry into possession he became a here ditary tenant under Section 1802 of the Tenancy Act
ii Even if the appellant did not acquire the rights of a hereditary tenant in the disputed land he had by long possession acquired the rights of a tenant or tenure holder of any other kind under the Government
He has been paying rent in respect of the land to the Government and as such was not in unauthorised occupation of the land
Since the land was held by the appellant as a tenant it did not fall within the definition of public land  given in Section 2a of the Eviction Act
iii Since the objections raised by the appellant in response to the show cause notice issued under Section 31 of the Eviction Act were substantial the Public Authority was bound to refer the dispute to the Civil Judge under Sec 7 of the Eviction Act
Its failure to do so vitiates the code of eviction passed by it
iv one of the prerequisites of taking action under Section 31 of the Eviction Act is that title Public land is required for one or more public purposed of this Act
Sub section 2 a of Section 3 requires that the notice shall specify the grounds on which the order of eviction is proposed to be made
The impugned notice issued by the Public Authority did not comply with these requirements of Section 3 and was therefore illegal
Points i and ii Mr Gupta did not seriously press the first point obviously because it was without substance
It may be noted that Section 180 of the Tenancy Act is subject to the restrictions contained in Section 30 of that Act which provides Notwithstanding anything in Section 29 hereditary rights shall not accrue on 1 1975 I SCR 1 179 3 land acquired or held for a public purpose or work of public A utility
 Even if it is assumed that the appellant was at the material time in occupation of this land for more than two years he would not acquire rightmost of a hereditary tenant under Section 1802
Omission of the State Government therefore to institute a suit under Section 180l within the prescribed period of limitation would not bring into existence relationship of landlord and tenant between the Government and the appellant and the letter s possession would remain as it was at its inception that of a trespasser or unauthorised occupant
This point is further highlighted by the definition of unauthorised occupation given in clause h of Section 2 of the Eviction Act which states Unauthorised occupation means occupation of a public land by any person without the authority of the owner for such occupation and includes its continued occupation after the expiry of the period of allotment lease or grant anything contained in
OP Tenancy Act 1939 to the contrary notwithstanding n In the context the definition of Public Land given in Section 2e of the Eviction Act may also be seen
This definition so far as material for our purpose states Public land means land belonging to or owned by the State Government but does not include land i for the time being held by a tenure holder for the State Government under the UP Tenancy Act 1939
ii  
 Section 2 b of this Act defines Lease to mean a lease as defined in Section 105 of the 
There is neither any factual nor legal basis for the appellant s contention that he had acquired some kind of tenure as a tenant by remaining in twelve years  continuous possession of the land in dispute
As noticed by Additional District Judge and the learned Single Judge of the High Court the Khasra tendered in evidence before the Public Authority shows that in the years 1362 1363 1365 and 1367 Fasli which we are told roughly corresponds to 16655 56 1956 57 1958 59 and 1960 61 AD the land in dispute was lying Banjar barren
That is to say in the years 1955 to 1961 the appellant was not in occupation of this land
During these years when the land was lying Banjar its possession would be presumed to be of the lawful owner viz the State Government
The appellant s possession over the land is shown for the first time in Khasra of the year 1368 Fasli roughly 180 corresponding to 1961 62 as bila tasfia Ziman 10 Ka
Same is the position shown in the Khatauni 1368 Fasli Bil Tasfia obviously means without settlement or allotment or grant
The documentary evidence from the revenue records accepted by the courts below had thus discounted the appellant s claim that he had been in cultivator possession of the disputed land for 12 years preceding the issue of the impugned notice under Section 31
It was never the case of the appellant that he had lawfully entered into possession of the land
On the contrary his case was that he took possession of the land without any grant settlement or lease from the land owner
Indeed by clanging acquisition of a hereditary tenancy under Section 1802 he admitted that he had taken possession without any title and without the consent of the land owner
Mr Gupta has been unable to show that the appellant s occupation of the land even for one or two years preceding the notice under Section 31 was that of a tenure holder within the contemplation of the saving sub clause i in the definition of public land  in Section 2e of the Eviction Act
The appellant s contention that he has been paying rent for this land does not appear to be well founded
No such plea appears to have been raised before the Public Authority much less was any evidence such as a rent receipt produced there
The Public Authority has nob d in its order dated October 3 1963 that the OP appellant herein did not produce any documentary evidence to show that he was holding the land with title permission of or under allotment from any competent authority
Nor was this plea agitated or pressed before the learned Single Judge or the Division Bench of the High Court
Even now before us counsel has not referred to any rent receipt or like document on record showing that the appellant had paid rent in respect of this land to the Government for the period of his possession preceding the notice under Section 3 1 of the Eviction Act
Even the Additional District Judge to whom for the first time in appeal some rent receipts appear to have been shown by the appellant has not recorded any clear cut finding that those documents evidence the receipt of rent by the Government in respect of the disputed land for the relevant period preceding the issue of notice under Section 31
This being the situation in this appeal arising out of writ proceedings under Article 226 we decline to embark upon a speculative examination of this argument for which there is no firm factual foundation and was never raised before the Public Authority nor pressed before the High Court
181 Be that as it may the provisions of Sections 218 30 1802 of the Tenancy Act on the one hand and Sections 2b 2ei and 2h of the Eviction Act on the other are to be construed in harmony with each other
So construed a person occupying land belonging to the State Government as a trespasser or without title or a person holding over after the revocation or cancellation of the lease allotment or grant in accordance with the conditions thereof cannot be considered a tenure holder from the State Government under 
the UP Tenancy Act 1939 within the meaning of Section 2ei of the Tenancy Act
There was thus no doubt that the disputed land was public land and the appellant was in its unauthorised occupation within the meaning of the Eviction Act
Point iii  Section 7 so far as material reads thus 71 Where an objection is taken on the ground that the disputed land is not public land and the Public Authority is of the opinion that the objection is not prima facie base less or frivolous he shall refer the question to the Civil Judge having jurisdiction stating the facts of the case and the point in issue
 From a plain reading of Section 71 extracted above it is clear that the obligation to refer the question whether or not the land is public land is not absolute but contingent
It arises only if the Public Authority is of the opinion that objection is not prima facie baseless or frivolous
In the instant case a perusal of the impugned order would show that although the Public Authority did not say in the phraseology of the Statute that the objection raised by the appellant was prima facie baseless yet in substance 
_ unhesitatingly came well nigh to the same conclusion when he observed The OP has not filed any documentary evidence to show that the land in dispute was allotted to him by a competent authority
The documents filed on behalf of the State show that the land in dispute is a public land and the CP is a trespasser thereon
 We are therefore of opinion that there was no infraction of Section 7
Point iv This point was not raised before the Public Authority nor in any of the Courts below
It is sought to be raised for the first time in this Court now
We decline to entertain it at this state
It is not 182 a pure question of law which could be decided on the basis of material already on record
The appellant has not produced even the copy of the notice under Section 3 1 which was served upon him and is supposed to be in his possession
In the circumstances of the case the maxim omnia praesumuntur rite essa acta will be attracted
It will be presumed that the public purpose of the Act for which the appellant was sought to be evicted from the public land was only specified in the notice in compliance with the requirement of sub section 2 of Section 3 of the Act
Thus all the contentions advanced by the appellant are devoid of merit
In the result the appeal fails and is dismissed with costs
PBR Appeal dismissed


Summary:
In appeal to this Court it was contended that the appellant had become a hereditary tenant under section 1802 of the Tenancy Act by reason of the fact that he had been in cultivator possession of the land for a number of years and no steps had been taken to evict him within two years of his entry into possession of the land 2 that since he had been paying rent to the Government he was not in unauthorised occupation of the land and 3 failure of the Public Authority to refer the dispute to a Civil Judge under Section 7 of the Act vitiated the order of eviction Dismissing the appeal  HELD la The appellant s claim was not that he lawfully entered into possession of the land but that he took possession without any grunt settlement or leases from the owner
By claiming acquisition of a hereditary tenancy under section 1802 he admitted that he had taken possession without any title anal without the consent of the land owner
1180 C b The provisions of Section 218 30 1802 of the Tenancy Act are to be construed in harmony with each other
So construed a person occupying land belonging to the State Government as a trespasser or without title or a person holding over after the revocation or cancellation of the lease allotment or a grant in accordance with the condition thereof cannot be a tenureholder
from the State Government under the UP Act 1939
 within the meaning of Sec
2ei of the Tenancy Act
There was thus no doubt that the land was public land within the meaning of the Eviction Act
181 A B 2 The obligation to refer the question whether or not the land is public land under Section 7 is not basic but contingent
Although the Public Authority did not say in the phraseology of the statute that the objection raised by the 176 appellant was prima facie baseless yet in substance it well nigh came to the same conclusion
It was therefore not obligatory for the authority to refer the question to the Civil Court
181 F 3 The plea that the notice did not comply with the requirements of section 3 of the Eviction Act and for that reason illegal had not been raised in the Courts below
It is not a pure question of law
The appellant has not produced a copy of the notice served on him
Tn the circumstances the maxim omnia prae sumuntur vite essa acta will be attracted
It will be presumed that the purpose for which the appellant was sought to be evicted was duly specified in the notices compliance with the requirements of section 32
182 A B