Kishan Ram vs State Of Uttarakhand And Others

Sharad Kumar Sharma, J

The petitioner in the present writ petition has challenged the Notice dated 03.09.2018, whereby he was directed to remove his encroachment, which he has made by way of construction of a tin shed on khata No. 28, khet No. 1497, which admittedly stand recorded in the revenue records as "banjar land", i.e. a land vested with the State Government. In regard to the Notice as issued by the Revenue Sub Inspector, the petitioner was directed to remove the tin shed by 10.09.2018 failing which the direction was issued that an appropriate proceeding(s) will be drawn against the petitioner. It was this notice which has been challenged by the petitioner for various reasons.

On receipt of the notice, the petitioner has replied the same on 04.09.2018, wherein he has contended that neither he has encroached upon any part of the plot No. 1497, nor he has raised any construction by way of tin shed on the said land. According to the petitioner, he was granted a lease under the Government Grants Act, 1895 on plot Nos. 1458 and 1459. Admittedly, it is not the petitioner's case at any stage of the proceedings that he was allotted plot No. 1497. It is further not disputed by him that plot No. 1497 stands recorded as "banjar land" in the revenue record which is a state land. It is a land, which is vested with the State Government under the revenue laws.

Learned counsel for the petitioner further contends that earlier there had been a proceeding drawn against him under the provisions of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971, which ultimately stood culminated in favour of the petitioner by the Appellate Court vide its judgment dated 08.04.2002.

So far as the proceedings, which had culminated under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971, in favour of the petitioner is concerned, those were in relation to the plot Nos. 1458 and 1459, for which the petitioner had justification to occupy in view of the lease granted to him under the Government Grants Act. But there is nothing on record to show that the petitioner had any right, title or interest to maintain his possession on the land lying in plot No. 1497, which is a State land.

Merely because of a fact that the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 proceedings have been decided in favour of the petitioner on 08.04.2002, it does not mean that the petitioner will acquire the immunity from drawing a proceeding(s) against him for all times to come, if he encroaches upon other land, belonging to the State Government.

This Court is of the view that the principles of res judicata, sought to be argued by the learned counsel for the petitioner will not apply in cases where the subject matter in issue is different, and particularly in the proceedings of Public Premises (Eviction of Unauthorized Occupants) Act, 1971, which are summary proceedings for eviction from the state land, on its conclusion cannot be inferred and in future if there is any act of encroachment by the person, no action can be taken against them.

Considering the reply given by the petitioner on 04.09.2018, wherein he has submitted that he has not encroached upon the plot No. 1497, in that eventuality, the petitioner should not have any apprehension about any action being taken in pursuance of the notice dated 03.09.2018, when his own case is that he has not encroached upon any part of the plot No. 1497. In the absence of there being any right, title or interest vested in favour of the petitioner in relation to plot No. 1497, quite obviously, he will have no right under law also to retain the possession, if any, he has possession on any part of the plot No. 1497.

Besides this, the determination of the question as to whether he has encroached upon the State land or not, and upto what extent the encroachment had been made by him are the questions of facts which are required to be determined by the competent revenue court or any court competent to deal with the matters, and not by the writ court under Article 226 of the Constitution of India where there cannot be an appraisal of evidence or determination of rights claim by party to the proceedings. Hence, as against the notice dated 03.09.2018, this Court is not inclined to interfere, more particularly, when the factum of possession has been denied by the petitioner in his reply dated 04.09.2018. Thus, this Court finds no merits in the writ petition, accordingly, the same is accordingly dismissed.

However, there would be no order as to costs.