HIGH COURT OF UTTARANCHAL AT NAINITAL (Court’s order whether the case is or not approved for reporting.) (Chapter VIII Rule 32 (2)(b) Description of the case. W.P. No. 435 of 2003 (MS) Bajir Khan Vs State through D.M. Chamoli Approved for reporting. Not approved for reporting Date of decision 15.05.06. Initial of Judge IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL WRIT PETITION NO. 435 (MS) OF 2003 Bajir Khan, S/o Shri Amir Khan, R/o Village-Bher Gaon, Patwari Circle-Karnaprayag, Tehsil-Karnaprayag, District –Chamoli. …………….Petitioner. Versus State of Uttaranchal through District Magistrate, Chamoli. …………………Respondents. Dated: 15.05.2006 Hon’ble Rajesh Tandon, J. Heard Sri Tumul Nailwal and Anil Bisht, Advocate for the petitioners and Standing Counsel for the respondents. By the present writ petition, the petitioner has prayed for a writ of certiorari quashing the judgement and order dated 18.03.1997 & 17.04.2003 (Annexure Nos. 1 and 2) respectively passed by the Prescribed Authority and District Judge, Chamoli respectively. Briefly stated, under Section 4(1) of U.P. Public Premises (Eviction of Unauthorized Occupants) Act, 1971, Prescribed Authority issued a notice to the petitioner based on the averments that the petitioner was an unauthorized occupant of plot no. 424 measuring 3 mutthi (9X4 metre) belonging to the state of U.P. The petitioner was called upon the show cause by 14.03.1995 as to why an order of petitioner’s eviction from the property in dispute be not passed. 2 Pursuance to the aforesaid notice, the petitioner submitted his reply dated 20.08.1995 wherein he categorically averred and stated that he has wrongly been challaned and the notice issued to him is defective and not ion accordance with law, therefore, the same is void. The land is not public premises. The pucca construction is more than 16 years old, even otherwise, the petitioner has perfected his right under the law. The petitioner resides in disputed premises along with his family and belongs to backward class community and is a poor man and he has applied for regularization which is pending since long. The Prescribed Authority vide his judgment and order dated 18.03.1997 held that the petitioner is an unauthorized occupant of property in dispute and further ordered his eviction therefrom. Being aggrieved, the petitioner preferred an appeal no. 15 of 2001 before the District Judge, Chamoli, which was dismissed in terms of the judgment and order dated 17.04.2003. Counsel for the petitioner has submitted that the land is not covered under the definition of Public Premises (Eviction of Unauthorized Occupants) Act and is exempted under the Act. In Ranjeet Singh Vs. State of U.P. & others [2002(1) ELC 508 (HC), this Court has passed the following order to the following effect:- “4. Learned counsel for the petitioners contended that the proceedings relating to agricultural land could not have been initiated under the Uttar Pradesh (Eviction of Unauthorised Occupants) Act. If the petitioners were unauthorized occupants on any agricultural land belonging to State, the proceedings under Section 122-B of U.P. 3 Zamindari Abolition and Land Reforms Act, 1950 could be drawn against them, as the land held by a tenure holder for the time being is not a public premises. 5. I find force in the contention of the learned counsel for the petitioners. The definition of “land” as defined under Section 3(4) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 reads as under:- “Land” means land held or occupied for purposes connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming.” 6. In the present case, the disputed land is admittedly used for the petitioners for the purposes of agricultural as is evident from the statement on record that the petitioners are in occupation since 1380 Fasli. The U.P. Zamindari Abolition & Land Reforms Act itself provides procedure for eviction of unauthorized occupants under Section 122-B of the U.P. Zamindari Abolition & Land Reforms Act. The agricultural land is not covered under the U.P. Public Premises (Evicition of Unauthorised Occupants) Act, as is evident from the definition of U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972, which reads as under:- “2(b) ‘Premises’ means any land (including any forest land or trees standing thereon, or covered by water, or a road maintained by the State Government or land appurtenant to such road) or any building or part of a building and includes,- (i) the garden, grounds and out houses, if any, appertaining to such building or part of a building; and (ii) any fittings or fixtures affixed to or any furniture supplied with such building or art of building for the more beneficial enjoyment thereof. 4 but does not include land which for the time bering is held by a tenure holder under any law relating to land tenures.” “2(e) ‘Public premises’ means any premises belonging to or taken on lease or requisitioned by or on behalf of the State Government, and includes any premises belonging to or taken on lease by or on behalf of— (v) any company as defined in Section 3 of Companies Act, 1956 in which not less than fifty-one per cent of the paid up share capital is held by the State Government; or (vi) any local authority; or (vii) any Corporation (not being a company as defined in Section 3 of the Companies Act, 1956 or a local authority) owned or controlled by the State Government; or (viii) any society registered under the Societies Registration Act, 1860, the governing body whereof consists under the rules or regulation of the society, wholly or public officer, or nominees of the State Government, or both; and also includes, -- (i) Nazul land or any other premises entrusted to the management of a local authority (including any building built with Government funds or land belonging to the State Government after the entrustment of the land to that local authority, not being land vested in or entrusted to the management of a Gaon Sabha or any other local authority under any law relating to land tenures); (ii) Any premises acquired under the land Acquisition Act, 1894 with the consent of the State Government for a company (as defined in that Act) and held by that company under an agreement executed under Section 41 of that Act 5 providing for re-entry by the State Government in certain conditions.” 7. Therefore, a conjoin reading of the definitions given under the Uttar Pradesh Public Premises (Eviction of Unauthorised Occupants) Act, 1972 of the premises and public premises clearly exclude the application of the provisions of the U.P. Public Premises (Eviction of Unauthorised Occupants) Act in case a tenure holder holds the land for the time being. In the present case, the evidence is on record that the petitioners were in possession on the disputed land from 1380 Fasli. Therefore, at the time when proceedings were initiated for eviction, the petitioners were a tenure holder for the time being. 8. Hence the proceedings could only be drawn under U.P. Zamindari Abolition & Land Reforms Act and could not have been drawn under the Uttar Padesh Public Premises (Eviction of Unauthorised Occupants) Act. Thus, the proceedings initiated under the U.P. Public Premises (Eviction of Unauthorised Occupants) Act, which gave rise to these writ petitions, were without jurisdiction.” A writ of certiorari is issued quashing the judgment and order dated 18.03.1997 & 17.04.2003 (Annexure Nos. 1 and 2) respectively passed by the Prescribed Authority and District Judge, Chamoli, respectively. In view of the aforesaid, the notice issued under section 4(1) of the U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972 is discharged. Writ petition is allowed. No order as to costs. (Rajesh Tandon, J.) 15.05.2006 Rathour