IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1391 of 2001 Ram Singh S/o Sri Kharak Singh ..……… Petitioner Versus District Judge and others ……… Respondents Mr. Lokendra Dobhal, Advocate for the petitioner. Mr. R.C. Arya, Brief Holder for the respondents. 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 u/S 4 and 5 of the U.P. Public Premises (Eviction of Unauthorised Occupant) Act, 1972 was initiated on the report of the Patwari alleging that the petitioner has encroached the land of the State Govt. belonging in Khasra No. 377 of an area of 3 muthis in village Bhergaon, Tehsil Karnprayag, District Chamoli and that he had constructed a shop. Pursuant to the notice, the petitioner appeared and filed his objections contending that he has been in possession for more than 20 years and that he is an ex-army soldier and is running a small tea shop on the land in question. The Prescribed Authority, after considering the evidence led by the State and after considering the submission of the petitioner, found that the petitioner was in illegal occupation of the land of the State Govt. and accordingly ordered his eviction. The petitioner, being aggrieved by the said order, has filed an appeal which also met the same fate and accordingly the petitioner has filed the present writ petition. At the stage of the admission of the writ petition, an interim order dated 17th March, 1999 was passed staying the eviction of the petitioner provided the petitioner deposits a sum of Rs. 5,000/- by way of security before the District Judge, Chamoli. It was also directed that the District Judge will keep this amount in a fixed deposit so that it could earn interest. Before this Court, the petitioner 2 has raised a new ground, namely, that he is in possession of plot No. 378 whereas the notice has been issued for the plot No. 377 and, consequently, the entire proceedings under the Act of 1972 is bound to fail. The learned counsel for the petitioner vehemently contended that the contents of the writ petition has not been controverted by the respondents since no counter affidavit has been filed and, consequently, on this ground, the writ petition should be allowed. In support of his submission, the learned counsel placed reliance upon a decision in Mangla Prasad Mishra Vs. D.I.O.S., Jaunpur and others, [(2006) 1 UPLBEC 586], in which, it has been held that if the averments made in the writ petition have not been controverted, then the averment made in the writ petition must be accepted to be true and a presumption would be drawn in favour of the petitioner. There is no quarrel with the aforesaid proposition raised by the learned counsel for the petitioner. Admittedly, the contents of the writ petition has not been controverted by the State Govt. The case which the learned counsel for the petitioner has relied upon will not be helpful in the present facts and circumstances of the case. The court finds that the averments relied upon by the petitioner, namely, that he is in possession of plot No. 377 and that the proceedings of eviction has been initiated for plot No. 378. This averment has been raised for the first time in the writ petition and, such averments cannot be taken into consideration. Such averments were not raised by the petitioner before the Prescribed Authority nor was it raised as a ground in the appeal. This Court is of the opinion that such grounds cannot be permitted to be raised by the petitioner for the first time as an afterthought, in a writ jurisdiction. The Court, from a perusal of the record, finds that specific averments have been made by the Patwari that the petitioner has encroached three muthis of land in plot No. 377 and has raised a chappar. This fact has not been controverted and the only ground raised by the petitioner before the Prescribed Authority was that he was in possession of the land for more than 20 years. 3 In view of the aforesaid, since clear and specific finding has been given that the petitioner had illegally encroached the Govt. land which has not been rebutted by the petitioner before the authority below, this court is not inclined to interfere in the impugned order in the writ jurisdiction. The writ petition consequently fails and is dismissed. The amount deposited by the petitioner before the trial court can be withdrawn by the respondents alongwith interest accrued thereon upon an application being filed before the District Judge, Chamoli towards the damages for the use and occupation of the land by the petitioner in question. It is further directed that since the petitioner is running a small tea shop and is in occupation since long, it would be open to the petitioner to apply for regularization of his possession. If such an application is made, the authority will consider it sympathetically. (Tarun Agarwala, J.) Dated 8th November, 2010 Shiv