Case: Jai Datt Vs. State of Uttar Pradesh and Ors

It arises our of theseDutt, appellant, was in possession of public land bearing Survey Nos 230, 131A and 131B, with an aggregate area of 80 Bighas and 19 Biswas in the area of village Guljarpur PurraamSingh, Tehsil Kala chungi, Distt. Nainital. The Public Authority, Nainital; served a show cause notice, dated August 26, 1963, under Section 3(1) of the U.P. Land (Eviction and Recovery of Rent and Damages) Act, 1959 (hereinafter called the Eviction Act) on the appellant for his eviction from this land on the ground that he was in its unauthorised occupation. The appellant contested the notice on the ground that he was in its possession for more than 12 years and had acquired the rights of a hereditary tenant in the land under Section 180(2) of the U.P. Tenancy Act, 1939 (for short, called the Tenancy Act). On these premises, the appellant contended that the land was not public land, an d as such, the Eviction Act has no application and the notice wasits order dated October 31, 1963, the Public Authority dismissed the objections, holding that the appellant "has not filed any documentary evidence to show that the land in dispute was allotted to him by a competent authority, while the documents filed on behalf of the State show that it is a public land and "the O.P. (appellant herein) is a trespasser thereon", and he is, therefore, liable to be evicted therefrom under Section 4(1) of the Eviction Act. The Public Authority further assessed Rs. 12/- as damages payable by thethis order of the Public Authority, Jai Dutt carried an appeal under Section S of the Eviction Act to the District Judge. The appeal was heard by the Additional District Judge, Kummaon-Nainital, before whom the appellant reiterated the contention that he had been in possession of the land in question for the preceding 12 years, and as such, had acquired the rights of a hereditary tenant thereon. There, the appellant seems to have further contended that he had been paying "rent" for his occupation of the land He appears to have shown some receipts also to the Additional District Judge.The Additional District Judge negatived all the contentions and dismissed theappellant then filed a writ petition under Article 226 of the Constitution before the High Court to impugn the orders of the Public Authority and of the Add. District Judge, inter alia, on the ground that since he had been paying rent for the land which has been in his cultivating possession for a number of years preceding the eviction proceedings, he could not be said to be all unauthorised occupant, but a hereditary tenant under Section 180(2) of the Tenancy Act The learned Single Judge of the High Court, who heard the writ petition, rejected this contention with the observation that the Khatauni of 1368 Fasli entered the petitioners possession over the disputed plots as ranging from 1 to 6 years. The oral evidence led by the petitioner does not outweigh the force of the entries in the Khatauni. The petitioner, therefore, did not ac quire any title under Section 180 of the U.P. Tenancy Act before 1953." The learned Single Judge further observed that the decision of the Division Bench of that High Court in Shri Chandra v. State of U.P. &Ors. (W.P. No. 3277 of 1966 decided on 13-2- 67) was applicable to the case and the land in dispute will be public land and the possession of the appellant unauthorised. In the result, the writ petition was dismissed with costs. The appellants special Appeal was dismissed by a Division Bench of the High Court on July 28, 1967. In the meantime, the Eviction Act was successfully challenged before the High Court in Writ Petitions 3755 and 3756 of 1962 which were decided on May 24,in view the value o f the subject matter which exceeded Rs. 20, 000/- and the question of the Constitutional validity of the Eviction Act, the High Court granted a certificate under Article 133 (l)(a) and (c) of the Constitution, that the case was fit for appeal to this Court. Hence, this appeal.

Reasoning:
There is neither any factual nor legal basis for the appellants contention that he had acquired some kind of tenure as a tenant by remaining in twelve years continuous possession of the land in dispute. As noticed by Additional District Judge and the learned Single Judge of the High Court, the Khasra tendered in evidence b efore the Public Authority, shows that in the years 1362, 1363, 1365 and 1367 Fasli (which we are told roughly corresponds to 16655-56, 1956-57, 1958-59 and 1960-61 A.D.) the land in dispute was lying Banjar (barren). That is to say, in the years 19 55 to 1961, the appellant was not in occupation of this land. During these years, when the land was lying Banjar, its possession would be presumed to be of the lawful owner, viz., the State Government. The appellants possession over the land is shown for the first time in Khasra of the year 1368 Fasli (roughly corresponding to 1961-62) as "bila tasfia, Ziman 10-Ka".Same is the position shown in the Khatauni 1368 Fasli "Bil Tasfia" obviously means "without settlement or allotme nt or grant". The documentary evidence from the revenue records, accepted by the courts below, had thus discounted the appellants claim that he had been in cultivator possession of the disputed land for 12 years preceding the issue of the impugn ed notice under Sectionwas never the case of the appellant that he had lawfully entered into possession of the land. On the contrary, his case was that he took possession of the land without any grant, settlement or lease fro m the land owner. Indeed, by clanging acquisition of a hereditary tenancy under Section 180(2), he admitted that he had taken possession without any title and without the consent of the land-owner.Mr. Gupta has been unable to show that the appellants occupation of the land even for one or two years preceding the notice under Section 3(1) was that of a "tenure holder" within the contemplation of the saving sub-clause (i) in the definition of "public land` in Section 2(e) of the Evictionappellants contention that he has been paying rent for this land does not appear to be well-founded. No such plea appears to have been raised before the Public Authority, much less was any evidence, such as a rent receipt produced there. The Public Authority has nob d in its order dated October 3, 1963, that the O.P. (appellant herein) did not produce any documentary evidence to show that he was holding the land with title permission of or under allotment from any competent authority. Nor was this plea agitated or pressed before the learned Single Judge or the Division Bench of the High Court. Even now, before us, counsel has not referred to any rent receipt or like document on record showing that the appellant had paid rent in respect of this land to the Government for the period of his possession preceding the notice under Section 3 (1) of the Eviction Act. Even the Additional District Judge, to whom for the first time in appeal, some "rent receipts" appear to have been shown by the appellant, has not recorded any clear-cut finding that those documents evidence the receipt of rent by the Government in respect of the disputed land for the relevant period preceding the issue of notice under Section 3(1). This being the situation, in this appeal arising out of writ proceedings under Article 226, we decline to embark upon a speculative examination of this argument for which there is no firm factual foundation and was never raised before the Public Authority, nor pressed before the High Court.Be that as it may, the provisions of Sections 2(18), 30, 180(2) of the Tenancy Act on the one hand and Sections 2(b), 2(e)(i) and 2(h) of the Eviction Act on the other, are to be construed in harmony with each other. So construed, a person occupying land belonging to the State Government, as a trespasser or without title or a person holding over after the revocation or cancellation of the lease, allotment or grant in accordance with the conditions thereof, cannot be considered "a tenure-holder from the State Government under . . . the U.P. Tenancy Act, 1939" within the meaning of Section 2(e)(i) of the Tenancy Act. There was thus no doubt that the disputed land was "public land" and the appellant was in its "unauthorised occupation" within the meaning of the Eviction7, (so far as material) readsWhere an objection is taken on the ground that the disputed land is not public land and the Public Authority is of the opinion that the objection is not prima facie base- less or frivolous, he shall refer the question to the Civil Judge, having jurisdiction, stating the facts of the case and the, - point ina plain reading of Section 7(1), extracted above, it is clear that the obligation to refer the question whether or not the land is public land, is not absolute, but contingent. It arises only if the Public Authority is of the opinion that objection is not prima facie baseless or frivolous. In the instant case, a perusal of the impugned order would show that although the Public Authority did not say in the phraseology of the Statute that the objection raised by the appellant was prima facie "baseless", yet in substance, . unhesitatingly came well-nigh to the same conclusion when heO.P.. has not filed any documentary evidence t o show that the land in dispute was allotted to him by a competent authority. The documents filed on behalf of the State show that the land in dispute is a public land and the C.P. is a trespasserare therefore of opinion that there was no infraction of Sectionpoint was not raised before the Public Authority, nor in any of the Courts below. It is sought to be raised for the first time in this Court, now. We decline to entertain it at this state. It is not a pure question of law which could be decided on the basis of material already on record. The appellant has not produced even the copy of the notice under Section 3 (1) which was served upon him and is supposed to be in his possession. In the circumstances of the case, the maxim omnia praesumuntur rite essa acta will be attracted. It will be presumed that the public purpose of the Act for which the appellant was sought to be evicted from the public land, w as only specified in the notice in compliance with the requirement of sub-section (2) of Section 3 of the Act.