Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 492 of 2008. State of Uttarakhand through Collector, Pauri Garhwal. … Petitioner. Vs. District Judge, Pauri Garhwal and 4 others. … Respondents. WITH Writ Petition (M/S) No. 493 of 2008. State of Uttarakhand through Collector, Pauri Garhwal. … Petitioner. Vs. District Judge, Pauri Garhwal and 4 others. … Respondents. Writ Petition (M/S) No. 494 of 2008. State of Uttarakhand through Collector, Pauri Garhwal. … Petitioner. Vs. District Judge, Pauri Garhwal and 4 others. … Respondents. Writ Petition (M/S) No. 498 of 2008. State of Uttarakhand through Collector, Pauri Garhwal. … Petitioner. Vs. District Judge, Pauri Garhwal and 4 others. … Respondents. Sri Sudhir Kumar, Brief Holder of the State for the petitioner. Sri S.K.Mandal, Advocate, learned counsel for the respondent no.1-Bharat Sadhu Samaj. Sri Alok Singh, Senior Advocate, with Sri Neeraj Garg, Advocate, learned counsel for the respondent no.4-Swami Sukhdevanand Trust. Sri Rakesh Thapliyal, Advocate, learned counsel for the respondent no. 5. 2 Date July 23, 2009. P.C.: Hon’ble B.S.Verma, J. Since the controversy involved in all these four writ petitions are similar and the orders under challenge in all these writ petitions are the same, therefore, for the sake of convenience all these writ petitions are being disposed of by this common order. Learned counsel for both the parties have agreed that these writ petitions be disposed of finally at the admission stage. 2. The background fact in nutshell giving rise to the present writ petitions is that a lease deed pertaining to 23 Nali land of Khasra No. 63 situated in village Jaunk, Tok Swargashram, Patti Talla Udaipur,, District Pauri Garhwal was executed by the then Deputy Commissioner, Pauri Garhwal, in favour of Geeta Bhawan, Swargashram on 6-10-1950, which was duly registered in the office of Sub Registrar, Lansdowne (Garhwal). It appears that Sub Divisional Officer Kotdwar made a report to the District Magistrate that Bharat Sadhu Samaj had taken forcible possession over 18,12/16 Nali of the lease land granted in favour of Geeta Bhawan. It was found that about 40-45 shop keepers are in occupation of the shops constructed over the said land and Bharat Sadhu Samaj was collecting rent from the tenants. Accordingly, notice was issued by the District Magistrate, Garhwal to the Manager, Geeta Bhawan to show cause why the lease granted in its favour be not cancelled for violation of terms and conditions of the lease. It also emerges out from the record that the Deputy Commissoner/Zila Adhikari Garhwal, by his order dated 21-9-1988 passed in Case No. 13 of 1986-87 had cancelled the lease deed granted in favour of Geeta Bhawan as the lessee had violated the terms and conditions of the lease. It was also observed that since the lessee Geeta Bhawan had constructed pucca building/Ghat in an area of 2,8/16 Nali only, hence the lease to that effect may be granted in its favour on application for the same having been made. 3 3. Brief facts giving rise to the present writ petitions are that the Patwari Patti Udaipur Talla filed Challani report along with copies of site plan, Khasara and Khatauni against the alleged illegal occupants before the Prescribed Authority/S.D.M. Kotdwar, who in turn on the basis of challani report issued notices under Section 4(1) of the U.P. Public Premises (Eviction of Unauthorised Occupants) Act 1972 (for short the Act) to the alleged illegal occupants as to why eviction proceedings be not initiated against them. They filed their written objection before the Prescribed Authority contending that the notice is not based on facts. They admitted their occupation on the part of the land under reference. It was also contended that the occupation of the opposite party is not illegal rather on the basis of permission of the government and that the District Magistrate Pauri Garhwal has proposed to grant lease to the occupants by letter dated 27-2-1989. The petitioners have spent huge amount thereon to make the premises fit for business. The notice is barred by the principle of promissory estopple and not legally tenable. 4. In support of its case, the State has examined Sri Anil Negi, the Patwari concerned of the area, who proved the challani report filed by him before the Prescribed Authority. 5. The record reveals that during the pendency of the proceedings initiated before the Prescribed Authority under Sections 4/5 of the Act, Swami Sukhdevanand Trust Parmarth Niketan (for short the Trust) moved an application before the Prescribed Authority on 2-12-2000 for its impleadment as opposite party in the proceedings contending that the Trust is an affected party and its interest is involved in the disputed premises. The application of the Trust was allowed and the Prescribed Authority served copy of notice dated 2- 11-1998 under Section 4(1) of the Act on the Trust. The Trust filed its objection contending that huge properties of the Trust are standing at Swarg Ashram, village Jaunk. Notice is against the facts and not sustainable in law. It was also contended that the challani report dated 4 30-10-98 has not been made part of the notice. It was also alleged that the Trust has been in possession of the disputed premises. It was further alleged that the Prescribed Authority has not applied its mind in issuing the notice. It was further alleged that plot nos. 63 and 64 are in continuous possession of the Trust since 1958-59 and trust has invested huge amount in the constructions raised thereon. The State intended to oust the Trust, hence the Trust filed a Civil Suit No. 3 of 1990 in the Court of Civil Judge (Senior Division) Pauri Garhwal. The Trust has perfected its rights over the disputed premises on the basis of its long standing possession and no suit was filed within a period of 30 years for eviction of the Trust. 6. It also reveals from a perusal of the record that the respondent-Bharat Sadhu Samaj (for short the Samaj) also moved an application on 31-5-2000 before the Prescribed Authority contending therein that the Samaj had constructed the shops in dispute about 40 years back. It was also alleged that the land was sublet by Geeta Bhawan in favour of the Samaj and the Samaj is in physical possession of the disputed premises. The alleged shop keepers are paying rent to the Samaj and they are the tenants of the Samaj. The Prescribed Authority allowed the application for impleadment moved by the Samaj and accordingly, a copy of the notice dated 2-11-1998 was supplied to the Samaj. The Samaj filed his objection and contended that the disputed portion of the land of plot no. 63 of village Jaunk, which was earlier recorded in the name of the State of Uttar Pradesh, had been leased out in favour of the Samaj by Zila Adhikari Pauri Garhwal and the Samaj had constructed building and shops thereon and let out the shops on rent. The lease was illegally cancelled on 21- 09-1988 by the District Magistrate Pauri against which appeal was filed by the Samaj before the Commissioner. The Commissioner has stayed the operation of the order passed by the District Magistrate on 29-08-1989. It may be noted here that a miscellaneous application was allegedly moved on behalf of Bharat Sadhu Samaj before the Commissioner, Garhwal Division, to stay the ex parte order dated 3-8- 5 1989; but undisputedly no appeal was pending or filed before the Commissioner in respect of the subject-matter of these writ petitions. It was also contended in the objection that the Trust filed a Suit No. 3 of 1990 against the State of U.P. and the Samaj in the Court of Civil Judge (Senior Division) Pauri, which was decreed. The Samaj also alleged that it preferred appeal against the judgment and decree passed by the said Court before the Allahabad High Court, which is still pending. It may be noted here that the appeal preferred by the Samaj was dismissed for want of prosecution by order dated 13-8-2004 passed by this Court. 7. It is also obvious from the record that the occupants further filed additional reply before the Prescribed Authority contending that the notice is not in consonance with the provisions of the Act and the Patwari filed challani report wrongly and have raised certain pleas therein, which shall be dealt with in the latter part of the judgment as and when required. 8. The Prescribed Authority after hearing both the parties and on perusal of evidence led before him ultimately confirmed the notices issued on 2-11-1998, dated 26.8.2000 and 27-1-2001 and passed the order of eviction against each of them by order dated 18-11- 2002. 9. Aggrieved by the order dated 18-11-2002, the respondent nos. 3 to 5, against whom proceedings under Sections 4/5 of the Act were drawn and order of eviction has been passed, preferred separate Miscellaneous Appeals before the District Judge Pauri Garhwal. The appellate court ultimately allowed the appeals vide judgment and order dated 6-9-2005, which gave rise to the present writ petitions. 10. The petitioner-State has filed the present writ petitions mainly on the ground that the District Judge has passed the order without considering the evidence on record. It has been alleged that 6 the appellate court has decided the appeals on the ground that a decree of injunction had been passed by the Civil Judge (Senior Division) Pauri Garhwal in Civil Suit No. 3 of 1990 Swami Sukhdevanand Trust Vs. State of U.P. and others and the decree passed in the suit had attained finality. It has also been alleged that the appellate court has based its finding stating that the operation of the order of cancellation of lease had been stayed by the Commissioner, Garhwal Division, Pauri Gahrwal. 11. At the outset, it may be mentioned that the petitioner- State has sufficiently explained the delay in filing the present writ petitions. 12. I have heard learned counsel for the parties and perused the material placed before the Court. 13. It may be mentioned that the State had challenged the order dated 6-9-2005 passed by the District Judge, Pauri Garhwal in a number of Misc. Civil Appeals before this Court in different writ petitions. This Court by order dated 18-5-2006 passed in Writ Petition Nos. 457 (MS) of 2006, 459 (MS) of 2006, 460 (MS) of 2006 and 461(MS) of 2006 has already remanded the matter to the District Judge Pauri Garhwal. After remand of the matter, the District Judge Pauri Garhwal has already considered the evidence produced before the courts below and after hearing the parties’ counsel has come to the conclusion that the notices issued to the unauthorized occupants are valid and has decided as many as 84 Misc. Civil Appeals by a common order and dismissed the appeals and upheld the order of eviction dated 18-11-2002 passed by the Prescribed Authority. 14. The controversy before the Prescribed Authority as well as before the appellate court is almost identical to the controversy involved in Writ Petition (M/S) No. 1568 of 2007, 1572 of 2007, 1573 of 2007, 1574 of 2007, 1579 of 2007, 1580 of 2007, 1581 of 2007, 7 1582 of 2007, 1583 of 2007, 1584 of 2007, 1585 of 2007, 1586 of 2007, 1587 of 2007, 1588 of 2007, 1589 of 2007, 1590 of 2007, 1597 of 2007, 1598 of 2007, 2006 of 2007, 2007 of 2007, 2008 of 2007, 2009 of 2007, 2010 of 2007, 2011 of 2007, 2012 of 2007, 2013 of 2007, 2014 of 2007, 2015 of 2007, 2016 of 2007, 2017 of 2007, 2018 of 2007, 2019 of 2007, 2020 of 2007, 2021 of 2007, 2022 of 2007, 2023 of 2007, 2024 of 2007, 2025 of 2007, 2026 of 2007, 2027 of 2007,2028 of 2007, 2029 of 2007, 2030 of 2007, 2031 of 2007, 2032 of 2007, 2033 of 2007, 2034 of 2007, 2035 of 2007, 2036 of 2007, 2037 of 2007, 2220 of 2007, 2222 of 2007, 2223 of 2007, 2224 of 2007, 2227 of 2007, 2228 of 2007, 2229 of 2007, 2230 of 2007, 2231 of 2007 and 18 of 2008. It may also be noted that the notices were issued under Section 4(1) of the Act to respondent nos. 3 to 5 by the Prescribed Authority as well as in the eviction cases under Sections 4/5 of the Act pertaining to the petitioners of the aforesaid 60 writ petitions on the similar ground, referred to above. This Court in the aforesaid 60 writ petitions has come to the conclusion that the original lease granted on 6-10-1950 in favour of Geeta Bhawan in respect of 23 Nali of land of old Plot No. 1 (new Number 63) of village Jaunk, Patti Udaipur Talla was cancelled by the Deputy Commissioner/District Magistrate Garhwal by his order dated 21-9-1988 and after cancellation of the lease, the occupants including alleged shop keepers, the Trust and the Samaj became unauthorized occupants. This Court in those writ petitions has not accepted the contention raised by the shop-keepers (petitioners), the Trust and the Samaj. There is no dispute to the fact that the lease granted on 6-10-1950 in favour of Geeta Bhawan was cancelled as Geeta Bhawan had violated the terms and conditions of the lease. The construction of shops over the land of Plot No;. 63 was made unauthorisedly and put the shop-keepers as its tenants, as claimed by the Samaj. On the other hand, the Trust claims itself to be owner of the disputed shops constructed over Plot No. 63. 15. It is pertinent to mention here that in these writ petitions also, the respondents are the shopkeepers as well as the Samaj and the 8 Trust. The controversy has already been decided by this Court in the abovementioned writ petitions that the shopkeepers are in unauthorized occupation of the public premises after the cancellation of the lease. It is significant to mention here that the State has not executed any lease in favour of the Samaj or the Trust in respect of plot no. 63 (old number 1) of village Jaunk, Patti Udaipur Talla. Neither the copy of lease dated 6-10-1950 executed in favour of Geeta Bhawan nor the Katkannama (sub-lease) allegedly executed by Geeta Bhawan in favour of Swami Krishnanand on 4-5-1955 was filed by either of the parties before the Prescribed Authority or the appellate court. Photostat copy of alleged Katkannama and lease-deed dated 6- 10-1950 have been filed by the petitioners and the Samaj in other writ petitions, referred to above. A perusal of the sub-lease (Katkannama) does not indicates that the sub-lease pertain to plot no. 63. Moreover, these documents were not proved either before the Prescribed Authority or the appellate court and this Court in exercise of jurisdiction under Article 227 of the Constitution cannot sit like a court of appeal and cannot re-appreciate the evidence. The scope of writ jurisdiction is limited and it has to be seen whether the Prescribed Authority has committed any manifest error of law thereby causing grave miscarriage of justice or jurisdictional error in passing the impugned order. 16. As mentioned earlier, the order dated 6-9-2005 passed by the appellate Court, i.e. District Judge Pauri Garhwal had already been set aside by this Court by order dated 18-5-2006 thereby the matter was remanded to the appellate court. The appellate court has thereafter considered the evidence again and passed the order dated 6-8-2007 thereby upholding the order of eviction dated 18-11-2002 passed by the Prescribed Authority. This Court while dismissing the writ petitions filed by the shop-keepers and the Trust has upheld the validity of the notice and has come to the conclusion that the impugned orders do not suffer from any manifest error of law or jurisdiction error, therefore, in view the order dated23-7-2009 passed 9 by this Court in Writ Petition (MS) No. 1568 of 2007, Narayan Singh Rawat Vs. State and others along with 59 other writ petitions, the order-dated 6-9-2005 impugned in these four writ petitions also deserves to be set aside. All the four writ petitions are liable to be allowed at the admission stage. 17. For the reasons above and in view of the discussion made in foregoing paragraphs, all the four writ petitions are accordingly allowed. The impugned order dated 6-9-2005 passed by the District Judge, Pauri Garhwal is quashed. The order dated 18-11-2002 passed by the Prescribed Authority stands affirmed in view of the order-dated 23-7-2009 passed in Writ Petition (MS) No. 1568 of 2007 Narayan Singh Rawat Vs. State and others. No order as to costs. (B.S.Verma,J.) RCP 10