HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 482 of 2001 (M/S) (Old no. 31435/1995) Zila Panchayat, Pithoragarh ………..Petitioner Versus State of Uttarakhand, Through Collector, Pithoragarh And others. …….Respondents Mr. J.C. Pandey, Advocate for the petitioner, Mr. R.C. Arya, Brief Holder for the State/respondent nos. 1 to 3. Mr. Arvind Vashishtha, Advocate for respondent nos. 4/a to 4/c. Dated: June 24, 2010 Hon’ble V.K. Bist, J. This writ petition has been filed by the petitioner for the following reliefs:- 1) To issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 27.05.1995 (annexure-16) and 18.08.1993 (annexure 12) passed by the District Judge, Pithoragarh. 2) To issue a writ, order or direction in the nature of mandamus directing the respondent no.2 to implead the petitioner as respondent no.2 in the said appeal and dispose the same after hearing the petitioner. 3) To issue any further suitable writ or direction as may be deemed fit and proper in the circumstances of the case. 4) To award the cost of the petition to the petitioner. 2. Briefly stated that petitioner is the recorded owner of Plot Khasra No. 4124 to 4187 measuring 28 Nali 1 Muthi land situated in village Lohakot, Patti Dewalthal, Tehsil-Didihat, District Pithoragarh. In a portion of said 2 land, Dak Bungalow of Zila Panchayat is situated and remaining part of the land is appurtenant land of the same. In the year 1979, the said Dak Bungalow was given to the Health Department on rent. It is further stated in the petition that respondent no. 4 Rami Ram was employed as Chaukidar in Zila Panchayat who was looking after the said Dak Bungalow with appurtenant land till 1979 when he was removed from the said post. It is stated in the petition that Patwari, Dewalthal submitted a complaint on 25.07.1991 to the Prescribed Authority/S.D.M., Pithoragarh against the respondent no.4 stating therein that he was in unauthorized occupation of the land in Khata No. 1 Plot Nos. 4130 to 4168, 4172, 4173, 4279, 4180 to 4184 total 47 plots measuring total 20 Nali 10 Muthis, which belonging to Zila Panchayat, Pithoragarh and on the basis of said complaint, proceedings under U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972 (hereinafter referred to as the Act) were initiated against respondent no.4. In this regard a case was registered and a notice was issued by the Prescribed Authority/S.D.M. Didihat, Pithoragarh to the respondent no.4 under Section 4 (1) of the Act. The respondent no.4 turned up before the Prescribed Authority and submitted his objection on 09.09.1991 wherein he admitted that the land in question belongs to the petitioner and he will vacate the same on the directions of the Zila Panchayat. The Prescribed Authority also issued notice to the petitioner and the petitioner in turn also submitted written statement before the Prescribed Authority on 18.11.1991. Both the parties led their oral and documentary evidence before the Prescribed Authority and vide order dated 02.06.1992, the Prescribed 3 Authority passed the ejectment order evicting the respondent no.4 from the land in dispute. Being aggrieved by the said order the respondent no.4 filed appeal before the District Judge, Pithoragarh, which was registered as Misc. Appeal No. 23/1992 and the said appeal was allowed by the District Judge vide order dated 18.08.1993. After getting copy of the order of the Appellante Court, the petitioner moved an application under Order 9 Rule 13 read with Section 151 C.P.C. with the request to implead the petitioner as respondent no.2 in the misc. appeal but the learned District Judge vide order dated 27.05.1995 dismissed the said application. Hence this petition. 3. I have heard Mr. J.C. Pandey, the learned counsel for the petitioner, Mr. R.C. Arya, Brief Holder for the State, Mr. Arvind Vashishthat, Advocate for respondent nos. 4/a to 4/c and perused the record. 4. Learned counsel for the petitioner submitted that both the impugned orders dated 27.05.1995 and 18.08.1993 passed by the Appellate Court are illegal and without jurisdiction as it is admitted case to both the parties i.e. the State and respondent no.4 Rami Ram that the dispute relates to the property of the petitioner. He submitted that the Patwari concerned in his report dated 25.07.1991 disclosed that the land in dispute belongs to Zila Pachayat and accordingly, as stipulated under Section 17 of the Act, the Prescribed Authority has also given notice to the Zila Panchayat to adduce evidence and to do Pairvi of the case. He further contended that the Zila Panchayat was necessary party before the District Jufdge and was entitled to be heard before deciding the appeal 4 against the petitioner on 18.08.1993. He further contended that Section 17 of the Act provides that every Corporative Authority shall be a party to the proceeding under the provisions of this Act, in case, if he had any interest in the property in dispute. He vehemently argued that the learned District Judge while allowing the appeal against the petitioner directed the Zila Panchayat to move before the Revenue Court, despite the fact that Zila Panchayat was not present before him. He further submitted that the learned District Judge allowed the appeal without following provisions of Section 331-A of the U.P. Zamindari Abolition and Land Reforms Act, 1950, by which the petitioner was deprived of from adducing evidence on this point. 5. On the other hand Mr. Argind Vashishtha, Advocate appearing for respondent no.4/a to 4/c submitted that the respondent has illegally been ejected from the land in dispute by the Prescribed Authority but the learned Appellant Court while allowing the appeal preferred by the respondent Rami Ram has rectified the mistake committed by the Prescribed Authority as the matter relating to land in question cannot be decided under Public Premises Act. He submitted that the contesting parties have duly been heard in the appeal. 6. Main arguments of the learned counsel for the petitioner is that the appeal should have been decided after due opportunity of hearing to the petitioner. I find submission of the learned counsel for the petitioner to be justified, but in view of the fact that the land in dispute is recorded under category-1 (A) with transferable right, the judgment passed by the learned District Judge, 5 Pithoragarh dated 18.08.1993 is found to be correct. So far as the order dated 27.05.1995 passed by the learned District Judge in Misc. Civil Petition no. 29 of 1994 under Order-9 Rule-13 CPC is concerned, the same is also justified and found to be correct, but the observation made by the learned District Judge in the order that “If the rights of zila Parisad are affected, it may very well file a suit in a competent Civil Court” is not correct. Learned counsel for the petitioner pointed out that this observation in itself is contrary to the observation made by the District Judge in the order dated 18.08.1993 in which the learned District Judge has observed that in page 53 that “;fn mldk dCtk xklh[kkuk ¼vfrpkjiw.kZ½ gS rks ,sls dCts ds fy, Hkh tehankjh mUewyu dh vf/kfu;e dh /kkjk&209 yxk;r 212 ds izkfo/kkuksa ds vUrxZr fu"dklu dh dk;Zokgh dh tk ldrh gS vkSj og dk;Zokgh ftyk ifj"kn~ Lo;a dj ldrh gSA”. Thus, the District Judge himself has given different observation in two sets of his order. 7. Accordingly, the part of the order dated 27.05.1995 passed by the learned District Judge in the Misc. Civil Petition no. 29 of 1994 observing there that “If the rights of zila Parisad are affected, it may very well file a suit in a competent Civil Court” is quashed. Findings of the learned District Judge that matter relating to the land in question cannot be decided under Public Premises Act is affirmed. The writ petition is partly allowed. Liberty is given to the petitioner to approach before appropriate forum for redressal of his grievances. 8. No order as to costs. (V.K. Bist, J.) 24.06.2010 NCM: