Jagdish Prasad vs State Of Uttarakhand And Others

Sharad Kumar Sharma, J

It is not in controversy that rights of the petitioner to continue to occupy the premises in dispute was on the basis of the grant, which was executed in his favour on 8th April, 1981 by the State Government, while exercising its powers under the Government Grants Act, hence, in view of the provisions contained under U.P. Amendment as made therein, under Section 2 and 3 of the Act, granting him a right to enjoy the property lying in plot No. 1971, which is now a subject matter of consideration in the writ petition as of now in the proceedings initiated under the U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972, (hereinafter to be referred as "U.P. Act of 1972"). Clause 7 of the grant, as executed in favour of the present petitioner has restricted his rights of enjoyment of property allotted subject to an action to be taken by invoking the provisions contained under the U.P. Act of 1972. Clause 7 reads as under :-

"यस विलेख की किसी शर्त के भंग होने पर अथवा उनके पालन न किये जाने पर ओर ऐसी किसी भी दशा में सरकार भले ही उसने पुन%प्रवेश करके किसी वाद..... अधिकार को छोड दिया जो इस ग्रान्ट को निरस्त कर सकता है और ग्रहीता तथा उसके समस्त अघ्यासियों को अन्य प्रचलित विधि के अधीन की जाने वाली कार्यवाही पर प्रभाव काल बिना उत्तर प्रदेश सार्वजनिक ..... आदि @ अप्राधिकृत अघ्यासियों की बेदखली @अधिनियम 1972 @ उत्तर प्रदेष अधिनियम संख्या 22 1972 के अधीन उक्त भूमि तथा भवन से निकाल सकता है तथा ऐसे पुनः प्रवेष पर उक्त भूखण्ड पर निर्मित आवास हटाने अथवा उसके संबन्ध में प्रतिकर पाने के ग्रहीता के समस्त अधिकारी उपहृत हो जायेंगे"

When a grant is executed in favour of a lease holder, in pursuance to the said grant as executed under the Central Act, that would be exclusively governed by the provisions contained under Section 3 of the Government Grants Act, which itself stipulates that a grant given under the said Act would be governed by the provisions and the restrictions as contained along with the limitation, which has been imposed in terms of the covonents of the grant itself and that could very well be specified by the U.P. Amendments, which has been made under Sections 2 and 3 of Principal Act of 1895, which is quoted hereunder :-

"2. (1) Transfer of Property Act, 1882, not to apply to Government Grants. -Nothing contained in the Transfer of Property Act, 1882, shall apply or be deemed ever to have applied to any grant or other transfer of land or of any interest therein, heretofore made or hereafter to be made, by or on behalf of the Government to or in favour of any person whomsoever; and every such grant and transfer shall be construed and take effect as if the said Act had not been passed.

(2) U.P. Tenancy Act, 1939 and Agra Tenancy Act, 1926 not to affect certain leases made by or on behalf of the Government. -Nothing contained in the U.P. Tenancy Act, 1939, or the Agra Tenancy Act, 1926, shall affect or be deemed to have ever affected any rights, created, conferred or granted, whether before or after the date of the passing of the Government Grants (U.P. Amendment) Act, 1960, by leases or land by, or on behalf of, the Government in favour of any person, and every such creation, conferment or grant shall be construed and take effect, notwithstanding anything to the contrary contained in the U.P. Tenancy, Act, 1939 or the Agra Tenancy Act, 1926.

(3) Certain leases made by or on behalf of the Government to take effect according to their tenor. - All provisions, restrictions, conditions and limitations contained in any such creation, conferment or grant referred to in Section , shall be valid and take effect according to their tenor; any decree or direction of a Court of law or any rule of law, statute or enactment of the Legislature, to the contrary notwithstanding:

Provided that nothing in this section shall prevent, or deemed ever to have prevented the effect of any enactment relating to the acquisition of property, land reforms or the imposition of ceiling on agricultural lands. - U.P. Act 13 of 1960, Section 2."

It is not in controversy that the grant thus issued in favour of the petitioner as back as on 8th April, 1981, stood cancelled by the decision of the State, which was made subject matter of challenge in a Writ Petition No. 508 of 1986, Jagdish Prasad Vs. State of Uttarakhand, at the behest of the petitioner and, consequently, the said Writ Petition where a challenge was given to the cancellation of the order has attained the finality with the dismissal of the Writ Petition by the judgment of Allahabad High Court dated 28th April, 1995. Meaning thereby, consequently, rights thus limited by grant dated 08.04.1981 stood exhausted with its cancellation, subsequently by dismissal of Writ Petition on 28.04.1995.

Two very interesting issues, which have been sought to be raised by the learned counsel for the petitioner is taking the shelter of the provisions contained under Section 60 (b) of the Indian Easement Act, which is quoted hereunder :-

"60. License when revocable. - A license may be revoked by the grantor, unless -

(a) ......

(b) the licensee, acting upon the license, has executed a work of a permanent character and incurred expenses in the execution."

He attempts to extract the implication of Section 60 (b) of the Easement Act as aforesaid on the pretext that the grant thus executed in his favour on 8th April, 1981, though, it was for the purposes of construction of the accommodation as per the terms of the grant and, as such, he can invoke and take the shelter of Section 60 (b) of the Easement Act, which according to the counsel for the petitioner restricts an action to be taken in relation to those grants, which contain a permission to raise the construction over the property, in question, thus leased to the petitioner on 8th April, 1981.

This Court of considering the arguments is of the view that Section 60 (b) of Easement Act, if it is to be taken into consideration in the manner in which, it has been sought to be portrayed by the counsel before this Court, it cannot be isolatedly read in a manner to be made applicable in relation to the property, which has been granted to the person, within the restrictions as imposed by the lease itself under the government grants made in the Government Grants Act because the protection under Section 60 of the Easement Act is only extendable to the "licenses", which have been defined under Section 52 of the Act, which too is quoted hereunder :-

"52. "License" defined. - Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called as license."

The term 'licence', 'grants' or 'leases' cannot be interpreted or be argued as to be legally on the same pedestal, as that of the grant under Sections(2) and (3) of the Governments Grants Act. The shelter to Section 60 (b) of the Easement Act would only be attracted once the right of enjoyment over the property is falling within the ambit of the definition of "licence" as defined under Section 52 of the Easement Act. If it is not covered within the said ambit of licence, this Court is of the view that the protection under Section 60 (b) cannot provide an immunity of an action to be taken under Section 4 of the U.P. Act of 1972, which otherwise stood admitted by the petitioner to be applicable in terms of the grant of 8th April, 1981, vide its Clause 7.

The petitioner, for the purposes of assailing the proceedings under the U.P. Act of 1972, cannot be permitted to extract the provisions of Easement Act in exclusion to the agreement which has been admittedly entered into between State and petitioner for the grant and for making the provisions of the U.P. Act of 1972 applicable for the purposes of getting the premises evicted, which was granted to the petitioner under the grant of 8th April, 1981. Since the Legislature has independently defined the term "licence" under Section 52 of the Easement Act and, particularly, if the grant is taken into consideration where "lease" has been granted in favour of the petitioner, that would be a lease falling to be within the ambit of Section 105 of the Transfer of Property Act, hence the lease cannot be read to be in consonance to the licence under Section 52, because lease or grant is a right, which has been conferred for the purposes of enjoyment of the property, it cannot be treated as to be the license so as to attract Section 60 (b) of the Act, because 'lease' and 'licence' have a different legal magnitude with regard to grant of right of user of the property.

Hence, in that view of the matter, this Court is not inclined to accept the argument of the learned counsel for the petitioner that he would be provided a shelter from revocation as contemplated under Section 60 (b) of the Easement Act and, particularly, taking into consideration the fact that when the grant itself stood cancelled by the orders of the District Magistrate, which ultimately stood affirmed by the judgment of the Allahabad High Court as rendered on 28th April, 1995. The legal corollary, which will follow is that as soon as the grant made in favour of the petitioner stood cancelled and subsequently, on a challenge given to it, it stood affirmed by the judgment of Allahabad High Court with the dismissal of the Writ Petition, which admittedly, stood affirmed and has attached finality since not being challenged by the petitioner before any superior Court, this Court is of the view that on cancellation of the lease itself would render the status of the petitioner as to be that of unauthorized occupants as defined under the U.P. Act of 1972, entailing the initiation of proceedings under Section 4 of the U.P. Act of 1972 and, as such, the cancellation of lease itself defines the status of the petitioner as to be that of an unauthorized occupant, hence, the consequential proceedings under the U.P. Act of 1972, as agreed to be made applicable under the terms of lease, would follow.

Thus, for the reasons assigned above, since the status of the petitioner is not that of the licencee and having held that he was lessee, he would not be protected by the provision contained under Section 60 (b) of the Easement Act. In addition to that, learned counsel for the petitioner had made reference to the judgment reported in AIR1940 Allahabad 324, Azhar Husain Vs. Mansab, which was a decision rendered in the Second Appeal No. 115 of 1938, where the status of the appellant there was being considered with regard to the implications of Section 60 (b) of the Easement Act. The said judgment, yet again, it is by way of a risk of repetition, submitted that it was the dealing with the status of the appellant therein, who was claiming himself to be the licensee and not a lease holder under a document executed under the statute of Government Grants Act.

Apart from it, the ratio propounded therein in the judgment as reported in AIR 1940 Allahabad 324, Azhar Husain Vs. Mansab, since being a decision rendered prior to enforcement, i.e. pre enforcement of legislation, in the sense, i.e. prior to the enforcement of U.P. Act of 1972, or even prior to the enforcement of the right of lease in favour of the petitioner, which was germinated for the first time by way of lease of 1981, the judgment will not have any binding precedent for the purposes of the present Writ Petition, since it would be governed altogether in terms of Sections 2 and 3 of the Government Grants Act, which admittedly, stood to be accepted and made applicable by the petitioner under the terms of the grants of 1981 itself.

The later judgment, on which, reliance has been placed by the learned counsel for the petitioner is to the judgment as reported in AIR 1989 Allahabad 182, Jai Narain Vs. Sri Ram Narain and others, which too, was arising out of the judgment rendered in the Second Appeal, where an inter se determination of right on a land granted under the Governments Grants Act and the right was being determined between the private persons, where the appellant, who had sought a shelter under Section 60 (b) of Easement Act raising his rights as to be that of a licensee and, hence, the concept of irrevocability of a licence as raised therein and determined by the Coordinate Bench of Allahabad High Court would not be attracted in the present case, where petitioner is a lessee under a grant, where the very foundation of rights of the petitioner is based upon a grant or lease and its terms, which definitely, as per the opinion of this Court cannot be taken as to be in the same parlance with the status of that being of a licensee and that too when an agreed procedure was settled to be followed when the status of the petitioner as a consequence of the cancellation of the lease of the petitioner has to be determined on the basis of the U.P. Act of 1972.

Hence, the first question is answered accordingly.

The second question, which has been argued by the learned counsel for the petitioner is with regard to the certain variances in dates in the notices, which have been issued under Section 4 of the Act of 1972.

In order to answer the said question, a reference to the provisions contained under Section 4 of the Act of 1972 itself becomes relevant, which is quoted hereunder :

"4. Issue of notice to show cause against order of eviction. - (1) If the Prescribed Authority, either of its own motion or on an application or report received on behalf of the State Government or the Corporate Authority, is of opinion that any persons are in an unauthorized occupation of any public premises and that they should be evicted, the Prescribed Authority shall issue in the manner hereinafter provided a notice in writing calling upon all persons concerned to show cause why an order of eviction should not be made.

(2) The notice shall -

(a) specify the grounds on which the order of eviction is proposed to be made; and

(b) require all persons concerned, that is to say, all persons who are, or may be, in occupation of, or claim interest in, the public premises, to show cause, if any, against the proposed order on or before such date as is specified in the notice, being a date not earlier than ten days from the date of issue thereof.

(3) The Prescribed Authority shall cause the notice to be served either personally on all those persons concerned or by having it affixed on the outer door or some other conspicuous part of the public premises and in any other manner, provided in the Code of Civil Procedure, 1908.

(4) Where the Prescribed Authority knows or has reasons to believe that any persons are in occupation of the premises, then, without prejudice to the provisions of sub-section (3), he shall cause a copy of the notice to be served on every such person by registered post or by delivering tendering it to that person or in such other manner as may be prescribed."

The very title clause of Sub-section (1) of Section 4 provides various sources and reasons of invocation of the proceedings under Section 4, viz.:-

i. on the own motion of the prescribed authority; or

ii. on application; or

iii. report received on behalf of the State Government; or

iv. the corporate authority when it is of the opinion to draw a proceedings under Section 4 of the Act.

The distinction, herein, is that the source of initiation of the proceedings under Section 4 has opened four avenues to the Prescribed Authority to initiate the proceedings under Section 4 of the Act.

The relevance for reference in the present case would be the third process, which could be resorted to by an authority for initiation of the proceedings on receipt of a report by the authority about the act of unauthorized occupancy over the State land.

It has been argued by the learned counsel for the petitioner that the first notice, which was issued under Section 4 (1) was that of 6th November, 1997, its foundation was laid by the Prescribed Authority on the basis of the report of Patwari dated 26thApril, 1998, and hence, he submits that it is absolutely improbable to initiate the proceedings under Section 4 by issuing the notices on 6th November, 1997 and that too on a post dated report of patwari dated 26th April, 1998 by making reference to the said report.

In response to it, the argument of the learned Standing Counsel is that, in fact, the said notice is not the basis of the initiation of the proceedings under Section 4, but rather, it is the notice which was issued on 27th April, 1998, which too, yet again refers to the report of 26th April, 1998, submitted by the Patwari, which has been taken as to be the basis for initiation of the proceedings by way of P.P. Case No. 6 of 1997, Jagdish Prasad Vs. State of Uttarakhand.

As having already observed that once under Section 4 itself a Legislature provides a different forum or avenues for initiation of the proceedings of eviction by invoking the provisions contained under Section 4, the reference of a report made in the notice of 6th November, 1997, may not be of much relevance in order to project a contradiction in the two notices issued by the Prescribed Authority. More particularly, in the light of the fact that the petitioner has ceased his right to occupy the premises conferred to him by lease in the light of the cancellation of his lease itself made by the District Magistrate, which was later affirmed by the Allahabad High Court by its judgment dated 28thApril, 2015, which has attained finality.

In that view of the status of the petitioner of being unauthorized occupant with the affirmation of his cancellation of the lease, in either of the circumstances whether it is a notice dated 16th November, 1997 or 27th April, 1998, even if it is deriving as a source of eviction from the Patwari report dated 26th April, 1998, it will not take away the right of the Prescribed Authority to initiate the proceedings of eviction on his own motion also, particularly, when the status of the petitioner has already been determined as to be unauthorized occupant as defined under the Act itself, because as with the cessation of his right to occupy the premises as a consequence of the cancellation of lease deed and further as a consequence of the determination already made by this Court with reference to the implication of Section 60 (b) of the Easement Act, which has been sought to be argued, this Court is of the view that a minor discrepancy of issuance of notice on 6thNovember, 1997 by making a reference to the report of the Patwari on 26th April, 1998, will not have much bearing on the proceedings on account of subsequent notice issued on 27th April, 1998, which apparently happens to be the subsequent to the report submitted by the Patwari and hence, when a Statute under Section 4 grants the Prescribed Authority the power to initiate the proceedings suo moto then, in that eventuality, the third process of initiation of the proceedings under Section 4 on the basis of the report submitted by the Patwari will not have such a vital effect and that in the circumstances of the present case when the petitioner is already determined to be as unauthorized occupants due to cancellation of the lease, he has been rightly determined to be unauthorized occupant. Hence, the impugned judgments of eviction are upheld.

Consequently, this Writ Petition lacks merit and is accordingly dismissed.

However, there would be no order as to costs.