IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition 2597 of 2001 (M/S) Jagat Singh S/o Shri Dilip Singh ..……… Petitioner Versus District Judge Pithoragarh and others ……… Respondents Mr. Lokendra Dobhal, Advocate for the petitioner. Mr. R.C. Arya, Brief Holder for the respondents/State. Hon’ble Tarun Agarwala, J. Heard Shri Lokendra Dobhal, the learned counsel for the petitioner and Shri R.C. Arya, the learned Brief Holder for the respondents. Proceedings under the U.P. Public Premises (Eviction of Unauthorised Occupant) Act, 1972 was initiated against the petitioner pursuant to a report of a Patwari alleging that the petitioner has encroached 4 muthis of land in khata No. 116, plot No. 23355 in village Lelu (Badda) Patti Nagar, Tehsil and District Pithoragarh and had made certain constructions on it. Based on the said report, a notice u/s 4 (1) of the Act No. 13 of 1972 was issued. The petitioner submitted a reply stating that he had purchased the land by means of registered sale deed from one Shri Ram Singh S/o Shri Deo Singh with regard to khata No. 472 having plot No. 24076, 24077 and 24078 and had constructed his house on it. The prescribed authority, after considering the material evidence on record, directed the eviction of the petitioner from 4 muthis of land and also issued notice for demolition of the construction. The petitioner, being aggrieved, filed an appeal which also met same fate. The petitioner, being aggrieved by the aforesaid orders, has filed the present writ petition. Having heard the learned counsel for the parties and having perused the record, one finds that the stand of the petitioner was clear and categorical, namely, that he had not made any encroachment in khata No. 116 vis-à-vis plot No. 23355 and, that he had made the construction in khata No. 472 bearing plot No. 24076, 2 24077 and 24078. When there is a categorical assertion by the petitioner that he has not made any encroachment on the land of the State Govt., it became necessary and imperative on the complainant, namely, the State Govt. to prove that the land had been encroached by the petitioner. The burden is upon the complainant who had lodged the complainant. In the present case, the Court finds that the Patwari was brought before the witness box who made categorical statement that he did not undertake to measure the land of the State Govt. or the land of the petitioner nor he took any steps to find out that the construction so raised by the petitioner was in his own land or on the land of the State Govt. In fact, the Patwari has given a statement that on account of inaccessibility of the land, it was presumed that 4 muthis of land of the State Govt. was encroached by the petitioner. In my view, the impugned order suffers manifestly on the ground of non application of the mind. From the record, the Court finds that the State has failed miserably in proving that the petitioner had encroached upon the land of the State Govt. In Union of India Vs. Babu Lal Gupta and others, 1975 A.L.J. 375, a Division Bench of the Allahabad High Court held that on a proper consideration of Section 4 and 5 of the Act No. 13 of 1972, the burden of proof was upon the public authority to establish that the person was in unauthorized occupation of the public premises and that the burden of proof was not upon the objector. In the present case, the Court finds that the burden has wrongly been placed upon the petitioner. Further, the Court finds that the State Govt. has miserably failed in proving that the construction was made on the State land. In view of the aforesaid, the impugned orders cannot be sustained and are quashed. The writ petition is allowed. (Tarun Agarwala, J.) Dated 30.08.2010 Shiv